September 2014 DBA Newsletter

DBA Newsletter





Samuel S. Frankel, Jr., Esq.

As many of you know, injured workers may be paid “compensation benefits” or “wage loss benefits”, which are two phrases used to describe the same thing under the Defense Base Act.  If an injury results in lost time from work – and lost or reduced salary – the Employer, normally through its insurance company, pays a portion of the lost wages while the worker is treating for the injuries.  There are two different categories of compensation benefits while a worker is treating for injuries (“temporary total” – TTD – and “temporary partial” – TPD – while actively treating for an injury), but once a worker is done treating, and is medically “as good as he or she is going to get”, benefits may continue as “permanent partial disability” benefits, or “PPD” benefits.  Remember, compensation benefits are 2/3 of your average weekly wage, subject to a maximum amount set by the Department of Labor for your date of accident.  The Department of Labor sets the upcoming fiscal year’s maximum compensation rate in September, effective for ACCIDENTS occurring October 1 to September 30 for the following year.  YOUR COMPENSATION RATE WILL NOT INCREASE.  Your compensation rate will remain the same, and is controlled by the date you were hurt or became disabled.

There are two types of PPD benefits: scheduled and unscheduled.  An injury to body parts such as fingers, toes, arms, legs, eyes, and ears are “scheduled” injuries. See Section 908 of the Longshore Act for a complete list.  This means the Longshore Act places a monetary value on those injuries in the form of additional weeks of compensation benefits, depending on the severity of the injury to these specific body parts.  Once these additional weeks are paid, there are no more compensation benefits – even if the scheduled injury prevents a worker from returning back to his or her former job!  As an example, if a welder loses a hand in an accident, he would be entitled to compensation benefits from the day he was last paid his salary through the date his doctor says he is as good as he is going to get.  From that point, the law states a lost hand is worth an additional 244 weeks of compensation benefits, regardless if he ever goes back to welding again.  Once those weeks are paid by the Employer/Carrier, no further compensation benefits are due.  As another example, if the welder injures his hand, but loses 40% of his function, the law only requires the Employer/Carrier to pay 40% of 244 weeks – or an additional 97.6 weeks of compensation benefits.

The second type of PPD benefits involve “non-scheduled” injuries – injuries to all those other body parts, including emotional injuries, which are not specifically listed in Section 8.  For example, these are injuries to the spine (neck and back), head, torso, upper thighs and upper arms, shoulder and hips, and internal injuries.  Even though a doctor may say an injured worker is as good as he or she is going to get from a non-scheduled injury, if that injury prevents the worker from returning to his or her job earning what he or she was earning at the time of the accident, compensation benefits may continue indefinitely.  For example, if a security guard fell off a guard tower and injured her low back, she would receive compensation benefits while she was treating.  Once her doctor said she was as good as she was going to get, but could not return to work doing what she was doing at the time of the accident (or could not work in a job earning the same salary due to her restrictions), TTD or TPD compensation benefits would stop, and become PPD benefits, possibly for the rest of her life.

What normally happens when an injured worker suffers a non-scheduled injury (such as a low back injury or psychiatric claim), treats until the point where the doctor says there is nothing more that can be done, and cannot return to the worker’s former job because of physical or emotional restrictions placed by the doctor?  This is a common scenario with workers who worked overseas in war zones; either a physical or emotional injury prevents them from returning to the war zone because of restrictions by their doctors.  Carriers will normally continue paying the compensation benefits, and perform an internal accounting change to note the transition from TTD or TPD benefits to PPD benefits, and notify the Department of Labor of the change in category.  The Carrier will then hire a vocational expert to contact the injured worker and conduct a vocational interview and Labor Market Survey.  The purpose of this interview and LMS is to identify possible jobs the injured worker COULD do within their medical restrictions, and based on the POSSIBLE earnings of these jobs, reduce the amount of PPD benefits.  Remember – the Employer/Carrier does not have to find a job for you – it only has to show there are jobs available you could do!

Carriers who can identify jobs they believe injured workers can do then perform a simple calculation to determine what reduction, if any, should be made to the PPD payments.  For example, a welder makes $500.00 a week.  After he trips on a hose at work, he injures his shoulder, and is prevented from returning to his old job because of lifting and climbing restrictions after surgery.  Based on his average weekly wage of $500.00, the Carrier was paying the welder 2/3 of that amount, or $333.34 per week in compensation benefits while he was treating.  Now that he has reached that point where he is as good as he is going to get, the Carrier hires a vocational expert, and identifies a suitable job in his area that is within his restrictions, which pays $5.00 an hour ($200.00 a week).  The calculation is:  subtract the new job’s salary (whether the worker has the new job or not!) from the salary before the accident, and multiply that by 2/3; i.e., $500.00 – $200.00 = $300.00 x 2/3 = $200.00.  The PPD amount would be reduced to $200.00 a week.

This reduction in the PPD compensation rate is not always a bad thing!  Take a look at the example above:  what happens if the injured worker applies for and gets the job identified by the insurance company?  The worker would have a new job earning $200.00 a week, and would continue to receive $200.00 a week in PPD compensation benefits (remember, reduced from $333.34).  BUT the worker is now earning MORE money than he was getting from his weekly compensation payments!  Instead of only getting $333.34 a week, he is now collecting a total of $400.00 a week in salary and compensation benefits!

There are a few things you should remember: compensation benefits are paid at 2/3 of your weekly salary, subject to a maximum compensation rate set by the Department of Labor for the year you were hurt.  This amount will never increase (unless you are so injured you can never, ever return to ANY type of employment whatsoever), but it may decrease depending on your medical condition and work restrictions.  If you injured your hand, foot, elbow, knee, ears, or eyes, compensation benefits only last for a limited time, based on your doctor’s records and permanent impairment.  The DBA is a workers’ compensation scheme, and it is designed to get injured workers back into the workforce as quickly as possible, and it is not meant to be a lifelong disability or unemployment plan.

If you have any questions about your compensation benefits, the amount you are receiving, or when they might end, please feel free to contact our attorneys.


 Barnett, Lerner, Karsen & Frankel, P.A.
2860 Marina Mile Blvd., Suite 105
Ft. Lauderdale, FL 33312
(954) 920-7400
(954) 920-9492 facsimile
(888) 732-7425 U.S. Toll Free