It has been a little over a year since I gave the eulogy I wished I would never have to give. I still have memories of that day, which will linger on for years to come. Losing someone very near and dear to your heart can leave you with many unanswered questions, anger, and resentment. These feelings are magnified if your loved one’s death resulted from unsafe working conditions overseas.
In general, the Defense Base Act provides death compensation benefits, medical expenses and funeral expenses to workers perishing overseas on United States’ military bases. The majority of Defense Base Act death claims filed today stem from heart attacks, insurgent attacks, and aircraft crashes occurring in Afghanistan. Under Section 20 of the LHWCA, as extended by the Defense Base Act, a claim for death benefits is presumed to be work-related in the absence of substantial evidence to the contrary. In this respect, the law is on your side. Additionally, it is important to note that the Defense Base Act is your exclusive remedy for recovery of monetary compensation resulting from the death of your loved one. Therefore, it is imperative that you retain an attorney who is specifically experience in the niche field of Defense Base Act litigation.
The governmental agency responsible for the administration and oversight of all new Defense Base Act claims is the United States Department of Labor’s Office of Workers’ Compensation Programs located at 201 Varick Street, New York, New York. As all new claims originate in the New York office, having a Defense Base Act attorney headquartered in New York City makes the most sense.
The first step in the claim process involves the decedent’s employer filing an LS-202 First Report of Injury or Illness. This form must be filed within 10 days of the workers' injury, and must include the date of injury, location of injury, and a brief description of the incident. Thereafter, you should immediately retain an experienced attorney who can help prepare and file a fully documented claim for death benefits (Form LS-262), even if you are receiving benefits from your insurance company. Take my word for it, having an attorney at the beginning of your claim will (1) give you piece of mind, (2) ensure that you and your family are receiving all due and owing benefits, and (3) cost you nothing.
Section 9 of the LHWCA, as extended in part by the DBA, lists potential beneficiaries for deceased American and Canadian workers. These potential beneficiaries include the following:
- A widow or widower, married or separated at the time of death;
- A child, which includes posthumous children, adopted children, en loco parentis, step-children, and acknowledged illegitimate children;
- Dependent parents;
- Dependent grandparents;
- Dependent grandchildren;
- Dependent brothers and sisters; and
- Any other individual who qualifies as a dependent under the US Tax Code.
If the decedent's dependents are non-resident aliens of the United States or Canada, then potential beneficiaries include a surviving spouse and children. If there is no surviving spouse or child, then beneficiaries are strictly limited to surviving dependent parents.
As a result of your loved ones’ overseas death, the insurance company should pay for all funeral expenses up to the statutory maximum amount of $3,000.00. In addition, they should pay for any and all costs associated with performing autopsies, DNA testing required for identification purposes, and the costs of repatriating your loved one's remains back home. If they deny any of the above, call an attorney immediately. It will be important to retain a copy of your loved one’s death certificate, marriage certificate, birth certificate, and all receipts documenting your funeral expenses to expedite the processing of your claim.
Additionally, you may be entitled to Defense Base Act compensation benefits due to the death of your loved one to help support your family. A surviving widow or widower is entitled to 50% of the decedent’s average weekly wage, subject to the statutory maximum compensation rate, for life (or until remarriage). If a surviving spouse has children, then the children share an additional 16 2/3% of the decedent’s average weekly wage until (1) the age of 18, (2) the age of 23 if enrolled in full-time course of study at an accredited educational or training institution, or (3) for life, if wholly dependent upon the decedent by virtue of mental or physical disability. 33 U.S.C.S. §902(14)-(18).
If there is no surviving spouse and only one surviving child, he or she receives 50% of the decedent’s average weekly wage. If there is no surviving spouse and more than one surviving child, the children share 66 2/3% of the decedent’s average weekly wage in equal portions. Grandchildren, sibilings, and other dependents receive 20% of the deceased worker’s average weekly wage, while dependent parents and grandparents each receive 25% of the decedent’s average weekly wage.
Non-resident claimants of the U.S. or Canada are subject to the commutation process established under Section 2(b) of the Defense Base Act. In short, a commutation is essentially a forced settlement amounting to 50% of the future value of all death benefits. If you are a non-United States resident and currently receiving death benefits, your benefits are subject to the commutation provisions established in Section 2(b) of the Defense Base Act. (For more information about commutations, please read this.) If this is the case, you will want to retain an attorney based in New York City, as the New York office of the US Department of Labor’s Office of Workers’ Compensation Programs handles all commutation applications in conjunction with the National Office.
During my time as a DBA defense attorney, I was assigned the majority of new death claims that came into our office. It was a somber task, but I gained more experience in this subject area than any of my peers. For a long time, I succeeded at denying claims, decreasing benefit payments, and passing the buck to the government under the War Hazards Compensation Act. Everything changed once I started Diamond Law Practice, PLLC. Now I fight for workers who were injured or killed due to workplace accidents on overseas military bases. I haven’t slept better in years, as I know I am fighting the good fight.
I know the tactics that defense attorneys use to deny, or decrease the value of your claim for death benefits under the Defense Base Act. I will use my knowledge and very specific skill set to your advantage.
John-Austin Diamond of Diamond Law Practice, PLLC is an experienced attorney who has handled countless death claims brought under the Defense Base Act. Call (212) 220-7134, or email me at JDiamond@DiamondLawPractice.com for a free claim consultation at no cost to you and your family. Our office is located on the 85th Floor of One World Trade Center, and is fully handicapped accessible.