The respondent’s road to limiting liability may be an arduous one. In order to garner the information necessary to establish 8(f) relief, well-honed discovery tools will be needed.
For example, review of personnel records, both past and present, may reveal the existence of prior work injuries or ailments. Similarly, a thorough deposition, identifying prior employers, prior medical providers, and prior injuries or illnesses should be undertaken. Moreover, the scope of deposition questioning should be broad, encompassing all potential pre‑existing disabilities.
Once pre‑existing disability is established and quantified by way of medical records, a well-crafted letter to a medical or vocational expert may serve to elicit the necessary evidence to establish the contribution prong of Section 8(f). Physicians should be asked to identify the worker’s level of impairment both with and without the pre‑existing disability. Similarly, vocational experts can be asked to opine on the economic impact of the work injury, both with and without the pre‑existing disability.
While a thorough case workup may be necessary to satisfy the three prongs of Special Fund relief, it should not be forgotten that time is of the essence. As discussed in a previous issue of For the Defense, an absolute defense to Special Fund relief exists for an untimely Application. As such, at the point in which permanency becomes an issue in the case, a precautionary Section 8(f) petition should at least be filed with the District Director to preserve the respondent’s right to pursue Section 8(f) relief and avoid the absolute bar.
Conclusion
While the above is intended to serve as a general overview of the Special Fund, it should not be forgotten that numerous nuances exist which may alter the application of Section 908(f) depending upon the type of work-related injury, i.e., scheduled injuries, unscheduled earnings, and hearing loss cases. Section 908(f) has been subject to judicial interpretation, sometimes resulting in divergent opinions throughout the judicial circuits. As such, the skilled practitioner would be wise to stay abreast of the ever-developing case law surrounding Section 908(f) and resolving intricacies which may alter the ultimate burden borne by the respondent in seeking a limitation of liability.
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