Once pre‑existing permanent partial disability is identified, the respondent must then establish that the worker’s current level of disability is the combined result of pre‑existing disability and the current work injury. In essence, the respondent must demonstrate that the worker’s only permanent disability is “materially and substantially” greater than the disability that would have resulted from the work-related injury alone. If the worker is permanently, totally disabled as a sole result of the work injury, Section 8(f) will not apply.
As was discussed briefly in a previous issue For The Defense, the contribution prong of Section 8(f) may be established in one of two ways. First, medical evidence may be procured speaking to the combined result of the pre‑existent disability and current work injury. In the alternative, vocational evidence may be obtained addressing the economic impact of the pre‑existent disability alone as compared to the economic impact of the pre‑existent disability combined with the work-related disability. Quan v. Marine Power & Equipment Co. (1997) 31 BRBS 178, aff’g (1996) 30 BRBS 124 (ALJ); Newport News v. Director, OWCP (Harcum II) (4th Cir. 1997), 131 F.3d 1079.
Scheduled v. Unscheduled Injuries
In assessing the viability of pursuing Special Fund relief and the potential benefit thereof, respondents must consider whether the subject industrial injury is to a scheduled or unscheduled part of the body.
The benefit garnered by way of Section 8(f) varies depending on the nature of the industrial injury. The general rule, which is applicable to unscheduled injuries (back, neck, shoulder, hip, etc.), limits respondent’s liability to the first 104 weeks of permanent disability. In the case of a scheduled injury (arm, leg, eye, fingers, foot, etc.), respondent is liable for the greater of 104 weeks or the number of weeks due for the subsequent injury. As such, where scheduled compensation is less than 104 weeks, 8(f) would not be beneficial. In scheduled hearing loss cases, respondent is liable for the lesser of the number of weeks provided for the subsequent loss, or 104 weeks. See generally, Reggiannini v. General Dynamics Corp. (1985) 17 BRBS 254.
In addition to seeking 8(f) relief for scheduled injuries, respondent should not overlook the possibility of credit where the claimant was previously compensated for disability to the same scheduled body part. For example, in Brown v, Bethlehem Steel (1987); 20 BRBS 26 (BARB) by application of Section 8(f), the employer’s liability was reduced from 144 weeks to 104 weeks for a scheduled leg injury. By application of credit for 57.6 weeks previously compensated, the employer’s liability was reduced again, resulting in only 46.4 weeks of compensation. In support of its Opinion, the BRB stated: “Our decision in this case serves the dual purpose of avoiding a double recovery to claimant while rewarding employer for continuing to employ claimant.” Brown at page 29.
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