Benefits Review Board Decides New Second Injury Fund Issue

The Benefits Review Board recently determined an employer’s liability under Section 8(f) in cases in which a claimant sustains successive aggravating injuries to the same body part.  Initially, the Board upheld the ALJ’s determination that the claimant sustained three distinct work injuries, all to his back.  The claimant initially injured his back in 1999.  After an extended recovery, he returned to work, and aggravated his back in November 2003.  He continued working, but eventually stopped working in June 2004 because of his aggravated condition.  The ALJ found that during this time, the claimant experienced periods of permanent partial and permanent total disability.  The claimant had back surgery, and returned to work in January 2005.  Later in 2005, the claimant again aggravated his back in a work accident, and has been totally disabled since that time.  Although the ALJ determined that the claimant experienced three distinct injuries, he believed that the injuries were not “separate, unrelated injuries.”  As a result, he commenced the carrier’s liability for 104 weeks of compensation from June 2004, the date on which the claimant’s November 2003 injury reached a permanent and total disability status, and therefore the earliest possible date on which to start the carrier’s 104 week liability.

The Board noted that, previously, “no cases specifically” dealt with successive aggravating injuries to the same body part under Section 8(f).  In reaching its decision, the Board relied on established case law holding that a work-related aggravation is a new injury under the Act.  The Board held, “although the 2003 and 2005 injuries were to the same body part, it cannot be said that claimant’s two periods of disability are due to the ‘same injury.’  That is, claimant’s 2003 injury did not alone cause the total disability in 2005.”  Therefore, the Board found that the carrier should be liable for 104 weeks of compensation beginning after May 2005, when the claimant’s final injury resulted in permanent disability.

Weimer v. Todd Shipyards Corp., BRB Nos. 13-0475, 13-0475A and 13-0475B  (7/29/14)