The Longshore and Harbor Workers’ Compensation Act contains a provision whereby employers and carriers can secure economic relief for the future benefits owed to an injured worker. But there are specific requirements to obtain the relief. Pursuant to Section 8(f) of the Longshore Act, an employer must show that the employee in question had a preexisting permanent partial disability, which made the employee’s ultimate permanent partial disability “materially and substantially greater than that which would have resulted from the subsequent injury alone.” See 33 U.S.C. § 908(f) (1984).
In a new unpublished Second Circuit case, the employer sought Section 8(f) relief for an injured worker who had preexisting asthma. Relief had been denied because the administrative law judge (“ALJ”) found that the employer failed to show how the asthma “materially and substantially” contributed to the injured worker’s subsequent work-related lung injury. Both the Benefits Review Board and the Second Circuit agreed.
To be sure, the injured worker’s treating physician wrote a letter stating that the worker’s “overall lung impairment following his work injury [was] materially and substantially greater than that which would have resulted from the work injury alone.” This was too conclusory for the ALJ, the Benefits Revire Board, and the Second Circuit, which stated: “Although [the employer and carrier] describe [the treating doctor’s] letter as a “report,” it amounts to a single sentence that echoes the relevant legal standard without offering reasons or citing evidence, and we cannot say that the ALJ erred in discounting its reliability.”
In the absence of additional evidence, Section 8(f) was denied. Although there was an independent medical examination report, that report “establishes only that [the employee] had a preexisting disability that was aggravated by his occupational injury–a fact of great relevance in determining [the employee’s] entitlement to benefits under the Longshore Act, but of little use in establishing the extent to which [the employee’s] preexisting asthma contributed to his final condition.”
Cianbro Corp. v. Director, OWCP, No. 15-451-AG, 2015 WL 8731687 (2d Cir. 2015).
Attribution: Photo courtesy of Flickr user Practical Cures.
