One of the common issues that arises in a Defense Base Act (DBA) claim is determining the correct average weekly wage (AWW) of the injured claimant. Generally, AWW is calculated by first determining if the claimant worked substantially the whole year prior to the injury. If so, was this work with the same employer or, at least, similar employment? If so, the wages are simply calculated, divided by 52 and an AWW is determined. There are several problems which rear their ugly heads, such as: what constitutes “substantially the whole year” and what type of job qualifies as “similar employment”. According to cases decided under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 37 weeks is the benchmark for the term “substantially the whole year”. Therefore, if you have worked 37 out of the last 52 weeks, you may qualify.
If it is determined that you have not worked substantially the whole year preceding your injury, the LHWCA gives several alternatives to determining your AWW. These involve determining if you are a five or six day employee and what your daily rate of pay turns out to be.
Now that you have the background of the LHWCA, let me tell you where the problems arise. First, most people who choose to work in Iraq, Afghanistan or other areas where defense bases are located, choose not to be there for an indefinite time. Therefore, most claimants in Defense Base Act (DBA) cases, do not work substantially the whole year before their injury at the wages paid overseas.
Secondly, insurance carriers are making a conscious effort to establish the date of injury at the earliest possible date. This does not necessarily coincide with the date of disability. Therefore, an injured worker may continue to serve his employer overseas only to see his much lower stateside wages be factored in to his AWW. In one case that I had, the injured worker had a problem with his lungs. This arose from the horrible air quality in Kabul, Afghanistan. One doctor there attributed this to toxins, including airborne fecal matter, in the air. My client first saw a doctor in September but did not stop working until the following August. Instead of getting credit for trying to work, the insurer is contenting that, because he only worked for two months overseas, his stateside earnings should be used to determine his AWW. The claimant’s stateside earnings were about half of his earnings in Afghanistan. We argued that, because the employer put the employee at risk and paid him accordingly, he was entitled to the higher AWW. This is not a novel theory; it has been put forth in many DBA cases but the issue has still not been finally decided. I had one case where the insurer calculated my client’s wages at less than $300.00 per week.
As you can see from articles throughout the internet, insurers are doing everything possible to cut expenses and reap huge profits from the tragedy in Iraq and Afghanistan. Where do they draw the line? Should the OWCP and our courts allow this travesty of justice? The answer of course is “NO” but how do we prevent it?
We prevent it by fighting back. Every one of the thousands of individual injured under the DBA should look into whether the insurer is paying the proper amount in wages. Please do not under any circumstances think the insurance companies which handle these claims are going to be fair to you. For the most part, they are going to do all that they can do to see that injured workers are going to be paid as little as possible. They do this in a number of ways but it all starts with the average weekly wage.
Anyone who is currently receiving benefits or even those who received benefits in the past should determine whether there AWW was calculated properly. Under the LHWCA, there is a provision which provides that if no method contained in the Act can fairly calculate a person’s AWW, then the OWCP or and Administrative Law Judge should do so. I take this to mean that ones safety, risk and sacrifice should be taken into account. You have already taken the risk. You should be compensated for it.