Defense Base Act Attorney Straight Talk: The DBA Burden-Shifting Proof Scheme

The Defense Base Act provides workers' compensation coverage for employees of defense contractors working outside the continental United States. In recent years, there have been thousands of injured DBA workers returning from Iraq and Afghanistan. This article is by a Defense Base Act Attorney. This article discusses how a Defense Base Act worker proves they are permanently disabled and thus entitled to lifetime weekly disability benefits.

The Defense Base Act has a burden-shifting proof scheme. The Defense Base Act is federal law. Each Circuit Court of Appeals interprets the Defense Base Act differently. This article discusses DBA law in the Ninth Circuit. Thus, this article concerns Defense Base Act cases arising out of the following States: California, Arizona, Nevada, Idaho, Montana, Oregon, Washington, Alaska, Hawaii, and Guam.

Although the law in the Ninth Circuit is similar to other Circuits, there are some notable differences. However, the concepts discussed in this article - in large part - also apply to DBA cases arising in other Circuits.

Under the Ninth Circuit test, You - the claimant - bear the initial burden of showing that a work-related injury prevents you from performing your former job. You will need medical evidence to prove you are unable to perform your DBA job duties.

If you make this showing (i.e., meet your burden), the burden shifts to your employer to demonstrate suitable alternative employment is available to you. Your employer may satisfy this burden in two ways.

First, your employer itself may make suitable alternative employment available to you - the injured employee. Second, in the alternative, your employer (read: the DBA insurance company) may show suitable alternative employment is available to you in the "relevant labor market." Usually, the relevant market is the area where you permanently reside.

You can rebut your employer's evidence by demonstrating that the alleged suitable alternate employment is not, in fact, suitable. What does this mean? You need to show that you are not able to perform and/or compete for said jobs. For example, if your employer points to a driving courier type job as being suitable alternate employment. You can establish that the courier job is not suitable alternate employment because you can only sit for 30 minutes at a time and the courier job requires constant driving.

If your employer satisfies this burden, you may rebut your employer's evidence of suitable alternative employment with evidence showing a diligent but unsuccessful search for such employment. As a practical matter, you need to show that you actually tried to get the jobs listed in the employer's Labor Market Survey. You should be prepared to show the Judge notes of your interviews and job efforts. Your notes should be fairly detailed in order to convince the Judge you really did try to apply and get the jobs listed in the Labor Market Survey.

If your employer does not satisfy its burden of showing available alternative employment, your employer must pay you disability benefits.

Disclaimer

This article is not legal advice. It is simplistic in order to achieve clarity. Your situation, facts, and/or circumstances may differ from those described herein. If you are a seriously injured DBA worker, you are advised to retain a seasoned DBA Attorney. Finally, always tell the truth. Don't try and fudge or lie. Because if you get caught - and you usually will get caught - you will lose your DBA case. So, don't go there. Just tell the truth and you will usually win.


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Bill Turley is a Defense Base Act Attorney. He is a Super Lawyer and an invited Speaker at the 2011 Maritime Personal Injury Seminar - he spoke on the Defense Base Act. Be sure to visit the DBA Attorney website.