Federal Workers’ Compensation Injuries – What Do You Get and When Do You Get It?
Most of our clients who suffer work-related injuries covered by the DBA (the Defense Base Act), the LHWCA (the Longshore and Harbor Workers Compensation Act) or the NAFIA (the Non-Appropriated Funds Instrumentalities Act) are so relieved to have the Soloway Law Firm accept their case, that they don’t initially ask the question, “What do I get and when do I get it?” Instead, our clients’ first statement usually is, “You have no idea how long it took for me to locate an attorney willing to accept Federal Workers’ Compensation cases.” When I tell our clients that I’ve been handling these cases for almost 40 years, they are more than surprised – since they have sometimes spent months or years handling their own DBA, LHWCA, or NAFIA claims without any legal representation at all. “I’ve spent the last year looking for a lawyer like you, through phone calls, internet searches, even old phonebook directories sitting in my closet,” say many of our current clients. “I’m so happy that you accepted my case, I don’t know where to begin.”
So we sit down with our clients who have such Federal Workers’ Compensation claims, and begin from the beginning. We start by making sure that our clients know what this system of compensating injured workers is all about, and how it works. Much of the time our clients have never been told what this arena of law involves or how they fit within it. Often, our clients have been misinformed about the system of Federal Workers’ Compensation in the United States, by lawyers who either do not handle workers’ compensation cases at all, or handle only state workers’ compensation cases and no Federal Workers’ Compensation claims. From these lawyers, our clients sometimes hear about laws that have little or no bearing on their Federal claims, because their source of information is merely guessing about this unfamiliar system of compensating injured workers. When we explain the correct system, our clients often say, “But I was told…” something completely different than the actual system of compensation for Federal Workers’ Compensation claims. Thus, when we say that we “begin from the beginning,” this means we are usually “unteaching” as much as “teaching” our clients what this law is really all about and how their own case fits within this compensation system.
I. What Do I Get?
It’s usually better to say what you don’t get. For instance, these Federal Compensation laws do not compensate you for your pain and suffering arising from your injuries, like car accidents or other personal injury claims. Other non-economic damages, like your lost capacity to enjoy life and mental anguish, are likewise not available to you. So what do you get?
The Defense Base Act, Longshore Act and its extensions provide you only two benefits – medical care for your work-related injuries, and wage loss benefits, normally at two-thirds (2/3) or your average weekly wages but subject to maximum/minimum rates published yearly by the U.S. Department of Labor. That’s all.
Within the wage-loss benefits are differing calculations tailored to your personal situation. For instance, if your doctor takes you off work completely following the date you got hurt at work, you are normally placed on “Temporary Total Disability” (TTD) for surgery and/or rehabilitation. You may be able to return to work during your post-injury medical care, and thus be moved by your employer’s workers’ compensation insurer to a “Temporary Partial Disability Status” where you return to part-time or light duty work and if part-time, you would still receive 2/3 of the difference between what you are earning and what you had been earning on your date of injury. If you are kept off work completely, however, you would normally stay on TTD status until your treating physician declares that you have reached “Maximum Medical Improvement” (MMI), at which point your doctor will tell you what “temporary medical problems” you’ve been suffering from have become “permanent problems.” Some of our clients are told by their treating physicians that they are “Permanently and Totally Disabled” from all employment, while others are told they are instead, “Permanently but only Partially Disabled” (PPD) from work, and capable of performing only jobs that are much lighter forms of work activity. And of course, some very lucky claimants reach MMI where their treating doctors tell them they “are good as new,” that all their “temporary problems” have been cured and they have no permanent injuries or disabilities whatsoever.
Some of our clients find the Soloway Law Firm only after their workers’ compensation insurer or its third-party administrator (like Gallagher Bassett, Broadspire, Contract Claims Service, and others) compel them to attend an “IME” or so-called “Independent Medical Exam.” This descriptive is far from the truth, since these medical examiners are clearly not “independent” since they are often paid thousands of dollars by the insurer (such as CNA, Starr Indemnity, AIG, Aetna, Cigna and many others) to conduct the exam or even just review your own doctor’s records and generate an “IME Report.” And what do these reports usually say to our new clients? You guessed it – they say that our new clients “are as good as new,” that all their “temporary problems” have been cured by their medical treatment following their on-the-job accident and injuries, and they have no permanent injuries or disabilities whatsoever. Amazing, right?
Meanwhile, our new clients remain out of work, their medical treatment is cut off and their savings are quickly running out. Their bills are piling up and the only mail they receive from their employer relates to the termination from employment and their loss of the medical insurance for their family that had been provided for many years by their job with the company. The employer, their third party administrator and workers compensation insurer argue that the IME Report shows that the injured worker is a deadbeat, too lazy to show up for work despite having absolutely no permanent medical problems keeping him from performing his job he did for years for this employer.
II. When Do You Get What You Are Supposed To Get?
My next article will discuss all the remedies available to you, and the fight to resolve your DBA, Longshore and NAFIA claims in a way, and to an extent, favorable to you and your family. Rarely is this fight won quickly, as these workers compensation insurers are often billion dollar corporations that care nothing about what you and your family are going through daily. To them, you are merely a claim number. These insurers pay their “claim examiners” very well, to defeat or destroy your claim outright or to pay very little in settlement, especially when you are so financially devastated by the loss of your flow of income that you’ll accept a lump sum to settle that is only a fraction of the real value of your claims for lost ability to earn money and need for medical care for the rest of your life. These claims adjusters know that you’ll take almost any sum of money to keep your family from losing their home and catch up on all the bills piling onto your shoulders as you are unable to return to the workforce. Time is the friend of these claim adjusters, and delay only continues to hurt you.
But when we finally get our day in court, then it is our turn. At that point, more often than not, the tables have turned, the truth of your medical evidence has been brought to the surface, and these employers and their insurance carriers must face the music and deal with a war of their own making. When the ALJ (Administrative Law Judge) is shown the evidence from your long-term treating physicians about your severe permanent injuries and their impact on your wage-earning abilities, the insurer’s accusation that you are just a lazy, deadbeat worker trying to score a financial windfall is shown to be what it really is – a nasty, untruthful attack on your character, supported only by an IME doctor’s opinion reached after a 15 minute superficial exam (or no exam at all!), who was paid thousands of dollars to spit out a bogus report on your case just like he’s done in hundreds of other injured worker’s cases, making him millions of dollars at the expense of truly injured and honest, hard-working men and women performing jobs (often in countries far from home) each day, almost every day of their adult lives.
When you finally approach your day before the judge, more often than not, the threats of no recovery and the minimal settlement offers go away. It is often at that time that we will be able to present to you the true value of your case, via real and substantial lump sum settlement offers in your Defense Base Act, Longshore and Harbor Worker’s Compensation Act, and Non-Appropriated Funds Instrumentalities Act claims. By your efforts to hang tough through all the delay in getting to trial, often by borrowing money from family and friends and by stretching your dollars in your savings account, you will finally be rewarded with a totally different situation, one where you are in charge and where you have the power to control you and your family’s destiny. That is what we’ll discuss in my next article about what you can get and when you can get it – the victory you’ve earned in your Federal Workers’ Compensation claim.
Learn about the author, attorney Daniel M. Soloway here: https://solowaylawfirm.com/about-us/our-attorneys/daniel-m-soloway/