Defense Base Act Articles
For Civilians Injured Overseas
9th Circuit Clarifies Issues In Defense Base Act Claims
In January 2019, the U.S. 9th Circuit Court of Appeals ruled that a linguist who worked in Iraq supporting U.S. troops is eligible for workers comp under the Defense Base Act after suffering from post-traumatic stress disorder. In the ruling, two important issues were raised: clarification of the appeals process, and what constitutes the average weekly wage.
Mr. Abdelmeged was hired by Global Linguist Solutions to work with U.S. troops for two years during the Iraq War. Upon his return, he experienced symptoms of post-traumatic stress and sought psychiatric treatment. Two years after his return, he filed for workers comp under the federal Defense Base Act, stating in his application that PTSD caused by his work in Iraq made it impossible for him to continue work or to earn his former wages.
The Defense Base Act
The Defense Base Act is an extension of the federal workers comp system. It is primarily designed to provide benefits, including medical treatment and compensation, to U.S. employees who work at defense bases overseas and are injured in the course of their employment.
Correct Legal Standard Was Applied in Defense Base Act Claim
Both the Benefits Review Board and an administrative law judge agreed that Mr. Abdelmeged’s claim was covered under the provisions of the Defense Base Act. However, his employer and its insurer petitioned for review based upon a theory that the ruling applied the wrong standard in approving the workers comp claim.
In denying the review, the three-judge panel of the Ninth Circuit Court of Appeals held that there was substantial evidence that supported the administrative law judge’s determination, and that Mr. Abdelmeged had met both the medical and economic aspects of disability under federal law. In short, he had met his burden to show that he was disabled.
The evidence, including Mr. Abdelmeged’s credible testimony, the opinion of the treating psychiatrist, and Abdelmeged’s inability to earn his former wages upon his return from Iraq was enough, according to the Ninth Circuit, to overcome other evidence in the record that might support a different conclusion.
Average Weekly Wage Calculated on What Could Have Been Earned
The second important issue revolved around what constituted the “average weekly wage.” Abdelmeged’s attorney argued that the calculation should be based upon the wage he had been making as an interpreter while in Iraq, while attorneys for Zurich American Insurance Co. (Global Linguist Solutions’ insurance carrier) argued that the average weekly wage should be based upon the amount he could make assuming employment stateside.
The Ninth Circuit stated that the average weekly wage should be calculated as an amount that fairly and reasonably represents a claimant’s annual “earning capacity” at the time of injury. Earning capacity, according to the Ninth Circuit, is the amount that an employee would have the potential and opportunity to earn had he or she not been injured.
Appeals Process is Clarified for Defense Base Act Claims
Finally, the 9th Circuit’s opinion clarified the appeals process, specifically, the question of where a petition for rehearing should be filed. Previously, petitions for review of compensation orders arising under the Defense Base Act would be filed in the circuit in which either the relevant district director or the ALJ’s office is located. The 9th Circuit opinion brought clarification to the ambiguity, by stating “we now hold that the location of the district director should control,” or in other words, in the district under which the compensation order was issued.
The Ninth Circuit’s ruling is important on several fronts, and especially as it relates to clarification of the appeals process for Defense Base Act claims, and clarification of what constitutes earning capacity as it relates to calculating the average weekly wage.
Best Defense Base Act Attorneys
Defense Base Act claims are extremely complex, and require a sophisticated understanding of the law. If you have an injury that may fall within the scope of the Defense Base Act, our attorneys have the experience and knowledge to navigate the process, and to ensure that you receive the benefits to which you are lawfully entitled.
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