The latest trend in Defense Base Act claims is former FLUOR, AECOM, Dyncorp, KBR, etc. employees to retain the services of legal representatives to argue their claims before Office of Worker’s Compensation Program (“OWCP”). Once a claim has been filled and the Carrier has received notification that Claimant is represented, no direct contact with Claimant is permitted without his attorney’s approval. At this point, the Carrier will assign the claim to their own attorney and he or she will handle the claim until it’s resolved either through settlement or before an administrative law judge and later circuit court.
That said, if the Carrier has disputed employee’s right to benefits, the defense attorney (insurance) will most likely submit a request to opposing counsel (employee’s attorney) to have Claimant available for deposition. Unlike a recorded interview statement, which is considered to be voluntary, deposition is pretrial discovery and if Claimant does not comply, the defense attorney may ask for subpoena to be issued. It is important for Claimant to review his medical records and provide truthful answers since his answers will be considered as an evidence if the case goes to trial.
Nowadays, remote depositions have become more prevalent due to the COVID-19 pandemic. However, residents of Kosovo, Macedonia, and Bosnia who file Defense Base Act claims often find themselves attending depositions in the conference room with interpreter and vendor representative present. Then, deposition is conducted via video conference call with defense and opposing counsels sitting in remotely. It is important to note that Claimant is placed under oath by court reporter and he should always tell the truth. Any inconsistencies may make Claimant look untrustworthy or not credible.
A deposition is a serious thing and when conducted by an experienced insurance defense attorney, it may be stressful since they may last for several hours. The defense attorney will be asking a series of questions, depending on the Claimant’s injury. These questions should not be personal, unless the reported disorder is PTSD, in which case defense questions may go into the Claimant’s personal life. Claimant’s attorney will be present as well and will make sure Claimant’s rights are protected and that the defense attorney does not ask any inappropriate questions.
For example, if the disorder in question is a work-related traumatic exposure injury, the defense will most likely ask series of questions and try to rebut the presumption with substantial evidence that Claimant does not have a work-related psychological condition. See Duhagon v. Metropolitan Stevedore Co., 169 F.3d 615, 33 BRBS 1(CRT) (9th Cir. 1999).
However, employer’s burden on rebuttal is one of production rather than persuasion and for that reason, the Carrier will most likely set an Independent medical evaluation (IME) for the Claimant as well. See HAMIDULLAH MAKHMOOR V. MISSION ESSENTIAL PERSONNEL, No. 18-70723 (9th Cir. 2019).
The issue with PTSD claims is that in genuine cases of PTSD, one sees “clear evidence of traumatic events followed by a change in person’s behavior……[a]nd more often than not [in cases involving overseas’ workers], they wind up getting sent home within a few weeks because they are just not functioning normally and everybody around them sees that something is not right”. PTSD does not appear suddenly after an extended period of time during which the individual functions “just fine”. See Matter of Gatewood v. Service Employees International (TR at 165-66).
