A recent decision by the Benefits Review Board may clarify how employers and carriers approach Section 12 notice defense strategies under the Defense Base Act. The Benefits Review Board’s ruling in March 2025 discusses when a claimant is presumed to have awareness of an injury and how that affects the notice requirement under 33 U.S.C. § 912. With claimants continuing to assert claims related to delayed-onset psychological conditions, Defense Base Act litigation remains a complex area of law.
Galloway’s New Orleans based Defense Base Act team examines how this recent decision may impact future claims and provides guidance on defensive strategies in psychological injury claims.
OALJ Case Snapshot: Section 12 and PTSD Claims
The Benefits Review Board (BRB) recently determined a claimant’s claim was timely under Section 12 contrary to the ALJ’s finding it time-barred due to late notice.
In Luis Carlos Aragon Caceres v. Triple Canopy, Inc. et al, BRB No. 23-0193 (March 12, 2025), the claimant, a native of Peru, alleged he sustained a work-related psychological injury while working as a security guard in Iraq between November 2005 and October 2007. The claimant testified that he began experiencing sleeplessness, night sweats, and nightmares as a result of his employment in Iraq in 2008 and first sought treatment for these symptoms eight years later in November 2016. The claimant was diagnosed with post-traumatic stress disorder (PTSD) related to his work in Iraq. The claimant subsequently filed a claim for benefits for his psychological injuries on November 23, 2016.
The ALJ denied the claimant’s claim, and held that the claimant failed to provide timely notice of his alleged injury under 33 USC 912(a). The ALJ reasoned that the claimant should have been aware of the relationship between his employment, injury, and disability in 2008 when he first experienced his symptoms. The ALJ also determined that the employer was prejudiced by the late notice, as it could not “participate in medical decisions that might have prevented the progression of Claimant’s symptoms.” As an ancillary matter, the ALJ found the claimant’s PTSD was an occupational disease, a finding which was upheld on appeal. Accordingly, the claimant’s claim was denied as time-barred under Section 12 of the Act.
The claimant then sought reconsideration of the ALJ’s decision, which was denied. While the ALJ again noted that the claimant should have had the requisite awareness of his injury in 2008, he added that there was “no doubt” that the claimant actually became aware of the connection between his injury, employment, and disability in 2011 when he applied to work for a different contractor hoping to work in Baghdad “where there was less exposure to combat conditions.” Additionally, the claimant alleged that there is no statute of limitations for his claim for medical benefits, but the ALJ rejected this argument. Specifically, the ALJ found that the entire claim is barred under Section 12 when notice is not timely given. The claimant then appealed to the BRB.
Resetting the Clock: The BRB’s Reversal
On appeal, the BRB reversed the denial of the claimant’s claim and found that the ALJ failed to apply the Section 20(b) presumption and incorrectly placed the burden on the claimant to establish timely notice of his claim. The BRB found that since the ALJ failed to apply the Section 20(b) presumption, the decision that notice of the claim was untimely was flawed.
The BRB also found that the ALJ failed to address how or why the claimant knew, or should have known, his 2008 symptoms were work-related or how those symptoms and his preference to work in a safer environment indicated he had sustained an injury that would impair his earning power. The claimant and the Director also argued on appeal that the employer failed to provide notice under LS-241 and LS-242, which should serve as excusing the claimant’s untimely notice of injury. The BRB did not address this argument based on its reversal on other grounds. Additionally, the ALJ did not assess whether the claimant appreciated the full character, extent, and impact of the injury and consider “additional relevant” evidence related to the claimant’s date of awareness. Furthermore, the first medical opinion diagnosing a psychological injury related to the claimant’s employment was issued on November 1, 2016, and there was no evidence prior to this date of diagnosis that linked the claimant’s psychological issues to his employment in Iraq. Accordingly, the BRB reversed the ALJ’s denial of the claim in its entirety, and remanded the claim to address whether the claimant established a work-related psychological condition.
Key Considerations for Developing a Section 912 Defense
In the case of occupational disease claims that do not immediately result in disability, the employer must be notified of the injury within one year from the date the claimant becomes aware of the relationship between (1) the employment, (2) the disease, and (3) the disability. While notice of an alleged injury should be in writing, the failure to give notice does not bar a claim if one of the following requirements is met: (1) the employer or carrier had knowledge of the work-related injury; (2) the ALJ excuses the failure to give notice to the designated official when notice was given to an official of the employer or the carrier; and/or (3) the ALJ determines the employer is not prejudiced by the lack of notice.
Additionally, the Section 12 limitations period only begins after a claimant recognizes that his or her injury has resulted in a loss of wage-earning capacity. The BRB has found that a claimant has awareness when he or she “can, or should be able to, determine from the information given that his ability to earn wages has been affected by the injury.” Suarez v. Serv. Employees Int’l, Inc., 50 BRBS 33 (2016).
Evidence on the Clock: Proving Prejudice
In support of a Section 12 defense, an employer/carrier must prove it was prejudiced by lack of timely notice. “Prejudice can be established if the employer can show that due to [claimant’s] failure to provide the written notice required by subdivisions 912(a) and (b), it has been unable to effectively investigate to determine the nature and extent of the alleged illness or to provide medical services.” Strachan Shipping Co. v. Davis, 571 F.2d 968, 972, 8 BRBS 161, 165 (5th Cir. 1978), rev’g 2 BRBS 272 (1975); White v. Sealand Terminal Corp., 13 BRBS 1021 (1981) (Miller, dissenting).
The Fifth Circuit has described “prejudice” as the failure to effectively investigate to determine the nature and extent of the alleged illness or to provide medical services. Strachan Shipping Co. v. Davis, 571 F.2d 968 (5th Cir. 1978). The Ninth Circuit has outlined “prejudice” when the failure to report a back injury prejudiced the employer of the opportunity to obtain a second medical opinion prior to the claimant undergoing surgery. See Kashuba v. Legion Ins. Co., 139 F.3d 1273 (9th Cir. 1998). However, the BRB found that the destruction of employment documents and the payment of increased penalties and interest do not constitute “prejudice” under Section 12. See Forlong v. Am. Sec. & Trust Co., 21 BRBS 155 (1988).
The BRB has held that in order to establish prejudice, employer bears the burden of proving by substantial evidence that it has been unable investigate the circumstances of the injury or provide medical services. Addison v. Ryan-Walsh Stevedoring Co., 22 BRBS 32 (1989). Examples of the failure to properly investigate a claimant’s circumstances of injury include the inability to obtain an Independent Medical Evaluation (IME) to determine causation and/or the nature and extent of injury, or the inability to retain vocational rehabilitation to identify suitable alternative and reduce exposure for any claim for permanent partial disability (PPD) benefits.
In developing a Section 12 defense under the BRB’s decision, the claimant is afforded a presumption that he or she provided timely notice of the claim and that employers and carriers bear the burden of showing that receipt of notice of the claim was untimely. However, an employer/carrier can rebut this presumption by presenting substantial evidence showing that notice was untimely.
In those claims involving latent occupational injuries, i.e. psychological or respiratory injuries, employers and carriers may wish to consider whether any prior medical records (whether associated with a prior claim or not) and/or preemployment physicals can be identified and located to show that a claimant was aware of a diagnosis and/or restrictions that affected the ability to earn wages due to the alleged injury. Additionally, employers and carriers may attempt to elicit favorable testimony through a claimant’s written statement, unsworn interview, or deposition to show that the claimant previously knew of the condition and the inability to return to war zone work before filing his or her claim. Furthermore, employers and carriers may wish to utilize expert medical testimony to explain the progression of symptoms following last day worked.
Employers and carriers are required to raise the Section 12 defense before the District Director “at the first hearing of the claim.” If the defense is not timely raised, then it is considered waived.
Disclaimer: This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between Galloway and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions.
