For the last six weeks, military installations within the Middle East have experienced an exponential rise in war-risk hazards due to the ongoing hostilities between the United States, Iran, and Israel. On many of these installations are career military contractors who previously sustained Defense Base Act-covered injuries that were resolved via settlement or an administrative law judge’s decision.
A question we have recently begun fielding is whether contractors who resolved a prior DBA claim and returned to work may file a new DBA claim for injuries sustained to the same previously injured body part during recent hostilities. The short answer is yes.
The Aggravation Rule
The DBA recognizes that injuries that previously resolved can become aggravated by subsequent events. Under the “aggravation rule,” where an employment-related injury contributes to, combines with, or aggravates a pre-existing disease or underlying condition, the entire resultant condition is compensable; the relative contributions of the work-related injury and the prior condition are not weighed to determine claimant’s entitlement. Strachan Shipping Co. v. Nash, 782 F.2d 513, 18 BRBS 45(CRT) (5th Cir. 1986) (en banc). Aggravation of a prior injury constitutes a new injury, and liability must be assumed by the employer for whom claimant was working when the aggravation occurred. Lopez v. S. Stevedores, 23 BRBS 295 (1990).
Each new exposure to injurious stimuli is a new injury. In Mowl v. Ingalls Shipbuilding, Inc., 32 BRBS 51 (1998), the BRB recognized a claimant’s continued employment aggravated her hearing loss, and as each aggravation is a new injury, claimant was entitled to be compensated for the entire loss (the combination of her pre-existing loss and her current loss) under the aggravation rule.
Effect of Prior Settlement
A prior settlement itself does not generally bar a claim for a later aggravated or new injury. Settlements are limited to the injuries/disabilities in existence at the time of the settlement. The law does not allow for settlement of unknown, future injuries. Said another way, if you settled a previous psychological injury claim, returned to work, and experienced a new injury or aggravation of your prior psychological injury, you are still able to file a new claim. A claim for a “new injury” is not one currently in existence, and thus it cannot be foreclosed by a prior settlement. See Clark v. Newport News Shipbuilding & Dry Dock Co., 33 BRBS 121 (1999).
Benefits are not limited to employees in good health; employers accept their employees with the frailties that predispose them to bodily hurt. Gooden v. Director, OWCP, 135 F.3d 1066, 32 BRBS 59(CRT) (5th Cir. 1998). The DBA does not penalize employees who return to work after an injury and are subsequently re-injured.
There are subtle differences between scheduled (e.g., knee) and unscheduled (e.g., psychological and back) injuries. In some instances, a present employer may be entitled to a credit for benefits paid by a prior employer.
Call today for a review of your case to see if you are eligible.
By: Brent Bartholomew ([email protected])
