Sunday, June 21, 2009

Defense Base Act (DBA) Claims - Determining the Correct Average Weekly Wage (AWW)

One of the problems that arises in an act of base defense (DBA) is the determination of the correct average weekly wage (AWW) of the plaintiff victim. In general, AWW is calculated by first determining if the claimant worked substantially the whole year prior to the injury. If yes, is this work with the same employer or at the very least, similar employment? If so, 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". Depending on the case, 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 37 worked 52 weeks, you qualify in May.

If it is determined that you have not worked substantially the whole year before your injury, the LHWCA provides several alternatives to determining your AWW. The question is whether you are a five or six days the employee and what your daily rate of pay is.

Now that you have the bottom 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 bases are located defense, choose not to be there for an indefinite time. Therefore, most claimants in the base Defense Act (DBA) of cases, do not work substantially all of the years before their injury wages paid abroad.

Second, the companies make a conscious effort to establish the date of injury as soon as possible. This does not necessarily coincide with the date of disability. Therefore, a worker injured in May continue to serve its foreign employer that your salary much lower in the United States are taken into account in his AWW. In one case I had, the injured worker had a problem with his lungs. This follows from the horrible air quality in Kabul, Afghanistan. A doctor, he attributed to the toxins, including faecal material suspended in the air in the air. My first customer was a doctor in September, but did not stop working until August Instead of getting credit for trying to work, the insurer that simply because he only worked for two months abroad, income in the United States should be used to determine AWW. The income of the applicant in the United States were nearly half of its revenues in Afghanistan. We argued that because the employer put the employee at risk and paid him accordingly, he is entitled to the higher AWW. This is not a new theory, it has been highlighted in many cases, DBA, but the issue has not yet been finally settled. I had a case where the insurer calculates the salary my client, less than $ 300.00 per week.

As you can see from the articles throughout the internet, the insurers are doing everything possible to reduce costs and draw huge profits from the tragedy in Iraq and Afghanistan. Where to draw the line? If the OWCP and our courts allow this travesty of justice? The answer is obviously "no", but how can it be prevented?

Prevent us from responding. Each of thousands of injuries under the DBA must consider whether the insurer pays the amount of wages. Please do not believe in any way the insurance companies that manage these claims will be just for you. For the most part, they will do all they can do to ensure that injured workers will be paid as little as possible. They do this in a number of ways, but everything starts with the average weekly wage.

Anyone who currently receives benefits, or even those who have received benefits in the past, should determine if AWW was calculated correctly. Under the LHWCA, there is a provision that if no method established in the law can fairly calculate a person AWW, the OWCP or the administrative law judge and must do so. I take it means that security risks and sacrifices must be taken into account. You've already taken the risk. You must be compensated for that.

Herbert Chestnut is a Georgia Workers' Compensation attorney in Marietta, Georgia with over 25 years experience. It provides services in Georgia workers' compensation injuries and cases of Iraq contractors under the Defense Act of base. Mr. Chestnut is the author of The Law on Defense Base Blog and was named Prosecutor of the work of the year three times by Consumer Business Review. See the website of his company to


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