Dissecting Disability under the LHWCA

by Matthew H. Ammerman on February 19th, 2012

An employer takes a worker as they find him. If it happens at work – you bought it. Wait. What about medical problems that arise after the work injury? To avoid paying for non-compensable conditions arising after the work injury, an employer must separate the non-compensable condition from the compensable condition. Most importantly, the employer must prove it.

On January 27, 2012, the Benefits Review Board confirmed in an unpublished opinion that when a worker sustains a non-work-related injury following a work-related injury, such as a stroke, the employer is relieved of liability for disability due to this intervening cause. Barnes v. Kinder Morgan, Inc., BRB No. 11-0339, Slip. Op. at 3 (January 27, 2012)[citation omitted]. However, the employer remains liable for any disability that is related to the original work injury. Here are two examples from cases decided under the LHWCA.

Rodney F. Barnes, Jr. fell on ice at work on January 6, 2004, and tore his left rotator cuff. He returned to light-duty work for six months and then was off work due to surgery. He returned to full-duty work on December 15, 2004, after recovery from the shoulder surgery. Barnes was told to “self-limit” for activities that might hurt his shoulder. Before he reached maximum medical improvement (MMI), he had a stroke. The administrative law judge awarded continuing permanent partial disability benefits despite the stroke. On appeal, the Benefits Review Board said that Barnes bore the burden of showing permanent loss of wage-earning capacity due to the shoulder injury; the stroke is not relevant to that determination. Barnes, Slip. Op. at 6.

The key proof: Barnes worked an increasing number of hours before his stroke, logging 14 hours the last day before his stroke on December 26, 2004. Barnes’ treating physician Dr. Brenneke concluded on February 2, 2005 -- after his stroke -- that Barnes’ shoulder reached MMI, and the doctor did not impose any work restrictions for the shoulder. The Board rejected the administrative law judge’s finding of disability after Barnes reached MMI. Barnes was disabled due to his stroke. Barnes had no shoulder-related permanent partial disability after February 2, 2005. The trial judge’s award of benefits after that date was reversed.

In an earlier, more complicated case, J. Tracy suffered compensable cumulative trauma to his hands and arms from work with an employer, Keller Foundation, up to the time he left in 1997. He had a heart attack in 2002 while he was working as a seaman for another employer. Therefore, Tracy was not covered by the LHWCA for the 2002 heart attack. Tracy sought total disability compensation for his upper extremity problems caused by his work at Keller. Keller showed evidence of suitable alternative employment as a security guard, which the administrative law judge found Tracy was capable of doing. The ALJ properly found – and the Board affirmed – that Tracy’s disability from his heart attack should be excluded. He should be treated as if he did not have disability from his heart attack. J.T. [Tracy] v. Global Int’l Offshore, Ltd., 43 BRBS 92 (2009). Tracy’s heart attack was a subsequent non-covered event, the restrictions from which are severable from those related to the work-related arm injury. The Board affirmed the finding that he was temporarily and partially disabled from the 1997 hand/arm restrictions, rejecting Tracy's argument that he was totally disabled.

How do you dissect and separate the non-compensable disability? In a wage-loss (general injury) claim, doctors should be careful to specify their work restrictions on a Work Restriction Evaluation (OWCP-5) as if the worker did not have the subsequent condition. Employers should be vigilant to ensure disability from the non-work-related condition does not creep into the work restriction due to inattention by the doctors. Vocational counselors should find jobs that match the worker’s restrictions associated with the work-related condition alone without consideration from disability from the post-injury event. To be successful, dissect the disability between the compensable and non-compensable condition. Support your position with medical and vocational evidence to ensure a good result.


Posted in LHWCA: Disability; compensation rate, LHWCA: Intervening Cause    Tagged with LHWCA, intervening cause, disability, Tracy

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