Federal Workers Compensation: What Do I Get And When Do I Get It, Part Two
As we discussed in Part One of this article, while it may take a long time to finally get a Formal Hearing before an Administrative Law Judge (ALJ), once you do get your hearing, you will get your opportunity to submit all the medical and other evidence supporting your claim of entitlement to medical care (Section 7 of the Defense Base Act (DBA) or Longshore and Harbor Worker’s Compensation Act (LHWCA) and lost wages and wage earning capacity under the DBA and LHWCA. Following the submission of your evidence, your Employer and its workers’ compensation insurer will have its own opportunity to submit evidence in defense of your claim. You may then submit rebuttal evidence showing that the Employer/Carrier’s evidence is not worthy of any considerable weight, in hopes that the ALJ will take your claim “under advisement” following the Formal Hearing and shortly thereafter, issue the Decision and Order awarding you all the benefits you seek.
So what are you entitled to under the ALJ’s Decision and Order in your favor? Of course, no two cases are exactly the same and therefore, your Decision will be tailored to the relief you are seeking and which the “greater weight of the evidence” supports in your favor. This award may take many different forms, some of which are covered below.
Your compensation rate is a rate derived from multiplying two-thirds (2/3) by your own average weekly wage (AWW) paid to you by your employer. However, under the Defense Base Act, where much greater wages are paid for work performed outside the continental United States and additional wages are normally included to account for the geographic area where you work and the danger inherent in working in foreign countries and forward defense bases in war zones, a “maximum rate” schedule exists each year that acts as a ceiling for your maximum rate of compensation. But regardless of what your rate of compensation is, the next issue in your claim will relate to the part of your body injured in your work-related accident.
Upon reaching Maximum Medical Improvement (MMI), your treating physician will normally provide you a Permanent Partial Impairment Rating under the Guidelines set out by the AMA (American Medical Association), for each part of your body injured in your accident. For DBA and Longshore claims, this rating, often referred to by your doctor as your PPD (Permanent Partial Disability), is intended to compensate you for a condition that is both permanent in nature and which negatively impacts your ability to earn money in the future. For some body parts, these Acts merely presume that you have suffered such limitation of wage-earning capacity and therefore, you don’t have to prove this loss by the submission of evidence. Instead, under Section 8(c) of the Act, a schedule actually sets out a list of anatomical losses which the law forces the Employer/Carrier to pay to you, even if you suffer absolutely no loss in pay, or no demonstrable loss of wage-earning ability.
If you view this “Schedule” in Section 8(c) of the Act by “googling” it on the internet through your smart phone or home laptop computer, you will see that Congress assigned a set number of weeks of compensation for such injuries, in its attempt to put values on the economic loss for certain body parts impacted by your work-related accident. Put another way, the Act places a value on 100% of the loss of using a certain body part or function, and if your doctor gives the opinion that you have (after reaching MMI) a 50% permanent partial impairment under the AMA Guidelines for that particular body part, or 50% loss of function of that body function, then you would receive an award from the ALJ under this Schedule equal to 50%, or half, of the number of weeks awardable for the complete loss (or 100% loss) of that body part or body function.
The Schedule is as follows:
- Arm lost, three hundred and twelve weeks’ compensation.
- Leg lost, two hundred and eighty-eight weeks’ compensation.
- Hand lost, two hundred and forty-four weeks’ compensation.
- Foot lost, two hundred and five weeks’ compensation.
- Eye lost, one hundred and sixty weeks’ compensation.
- Thumb lost, seventy-five weeks’ compensation.
- First finger lost, forty-six weeks’ compensation.
- Great toe lost, thirty-eight weeks’ compensation.
- Second finger lost, thirty weeks’ compensation.
- Third finger lost, twenty-five weeks’ compensation.
- Toe other than great toe lost, sixteen weeks’ compensation.
- Fourth finger lost, fifteen weeks’ compensation.
- Loss of hearing:
- Compensation for loss of hearing in one ear, fifty-two weeks.
- Compensation for loss of hearing in both ears, two-hundred weeks.
- Phalanges: Compensation for loss of more than one phalange of a digit shall be the same as for loss of the entire digit. Compensation for loss of the first phalange shall be one-half of the compensation for loss of the entire digit.
- Amputated arm or leg: Compensation for an arm or a leg, if amputated at or above the elbow or the knee, shall be the same as for a loss of the arm or leg; but, if amputated between the elbow and the wrist or the knee and the ankle, shall be the same as for loss of a hand or foot.
- Binocular vision or per centum of vision: Compensation for loss of binocular vision or for 80 per centum or more of the vision of an eye shall be the same as for loss of the eye.
- Two or more digits: Compensation for loss of two or more digits, or one or more phalanges of two or more digits, of a hand or foot may be proportioned to the loss of use of the hand or foot occasioned thereby, but shall not exceed the compensation for loss of a hand or foot.
- Total loss of use: Compensation for permanent total loss of use of a member shall be the same as for loss of the member.
- Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member.
- Disfigurement: Proper and equitable compensation not to exceed $7,500 shall be awarded for serious disfigurement of the face, head, or neck or of other normally exposed areas likely to handicap the employee in securing or maintaining employment.
You will notice that spinal injuries, such as injuries to a person’s neck or back, are not listed on the Schedule above. For these injuries, rather than a set scheduled award of benefits, benefits are paid based on 66 2/3 of the difference between the worker’s pre-accident AWW and the worker’s post-accident AWW. These benefits are typically payable for the injured worker’s lifetime, subject to what is called a “Section 22 modification” for a significant change in the worker’s ability to return to higher-paying employment post-accident.
Finally, the last case of disability under the DBA and LHWCA is Permanent Total Disability (PTD). For PTD claims, the ALJ may determine from our presentation of evidence that your permanent partial disability, or combination of permanent partial disabilities, prevent you from returning to your former job with your Employer. This is what is called establishing the Employee’s prima facie case. The burden of proof then switches over from our side to the Employer/Carrier’s attorney, where he or she must prove that despite your restrictions and limitations arising from your work-related injuries, you still have the ability to perform other, less heavy work. If the E/C’s attorney cannot carry this burden of proof by substantial evidence, then the ALJ may issue his Decision and Order, finding you to be PTD. In addition, even where the defense attorney does carry this burden of proof (often through an IME doctor saying you can do more heavy work than your own treating doctor believes, and hiring a “vocational expert” to conduct a “Labor Market Survey” (“LMS”) to show a series of “alternate jobs” you can supposedly do), the evidence war at your Formal Hearing is not over yet. At that point, the burden of proof then switches back over to our side. If we can show that you conducted a “good faith work search” and despite trying to get hired at each of the jobs listed by the Employer/Carrier’s vocational expert in his Labor Market Survey, you were not in fact hired at any such job, the ALJ may still issue his Decision and Order finding you to be PTD – Permanently and Totally Disabled – and thus entitled to these benefits, plus medical care for the remainder of your life.
As you can see, from the moment the Soloway Law Firm accepts representation of your claims under the Defense Base Act, the Longshore and Harbor Worker’s Compensation Act, or the Non-Appropriated Funds Instrumentalities Act, we gear up for a war with the worker’s compensation insurance companies. Sometimes these carriers don’t dispute that your claims are covered by these Federal Worker’s Compensation laws, and pay wage loss benefits and provide necessary medical care without a fight at the beginning of your case immediately after your injury. Unfortunately, this nice way of doing business usually stops thereafter, and the carrier often disputes your entitlement to the medical care you need and the wage loss benefits to which you are entitled. And that is where we come in, to help you get what the law says you are entitled to, through hard work, good lawyering, and despite all the delays, the fortitude and staying power to build and win your case at trial before an Administrative Law Judge. So keep the faith and remain strong in the face of this adversity, knowing that the folks at the Soloway Law Firm are here on the offensive side of the ball, to bring your fight against the defense thrown up before you, your family and your right to benefits under the law of Federal Worker’s Compensation in America.
Learn about the author, attorney Daniel M. Soloway here: https://solowaylawfirm.com/about-us/our-attorneys/daniel-m-soloway/