004 Concept of Injury & Initial Evaluation

THE CONCEPT OF INJURY UNDER THE ACT

An injury is defined under the Act pretty much as any deviation from what you'd expect to be happening within the human frame.

It can be traumatic, induced by exposures

or brought about by repetitive motion.

Understanding "Injury" Through

the Aggravation Rule

UNDer the “Aggravation Rule”, when an employment-related injury contributes to, combines with or aggravates a pre-existing disease or underlying disability, the ENTIRE resulting disability is compensable.

E-N-T-I-R-E !!!!

“Aggravation rule” cases can involve disputes as to which employer or carrier was responsible for the injury. These types of cases are becoming more common and contentious as employers and carriers attempt to avoid liability by shifting the liability to a earlier or later employer or carrier.

Cardiac, pulmonary, hearing loss and

repetitive motion cases often fall into this

category.

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There can be a “natural progression” of the prior injury.

• The first employer remains responsible for the subsequent period of disability.
• Proving that an injury is nothing more than the natural progression of the prior injury is becoming increasingly difficult.

When Claimant alleges increased symptoms at work... what can really be done to challege the aggravation rule?

In Buchanan v. International Transportation Services, 33 BRBS 32 (1999), aff'd mem., No. 99-70631 (9th Cir., Feb. 26, 2001) the BRB stated:

In determining the responsible employer in the case of multiple traumatic injuries, if the disability results from the natural progression of an initial injury and would have occurred notwithstanding a subsequent injury, then the initial injury is the compensable injury and accordingly the employer at the time of that injury is responsible for the payment of benefits. If, on the other hand, the subsequent injury aggravates, accelerates, or combines with claimant's prior injury, thus resulting in claimant's disability, then the subsequent injury is the compensable injury and the subsequent employer is fully liable.

INITIAL EMPLOYER CONCERNS

AND ACTION

What Constitutes a Claim?

Although the Department of Labor has specifically designed a form upon which an employee should file a claim (Form LS-203), there is no formal requirement that the form be used. Indeed, virtually any writing from which an inference may reasonably be drawn that a claim for compensation is being made will be sufficient to constitute a claim

The statute of limitations may be tolled for a number of reasons including: 1) minors and legal incompetents; 2) failure to file the Employer’s First Report of Injury; 3) denial of a claim under the Jones Act; 4) payment of compensation under a state workers’ compensation statute; and 5) a de minimis award.

The LS-202

Must complete and file this form in every case where the injury results in the loss of one or more shifts of work.

Must be completed, but not filed, for 'no lost time' claims

Must be filed with OWCP within 10 days from injury

LS-202 Not Admissible into Evidence

Fine of up to $10,000 for failure to file

Although not necessarily included in the Employer’s First Report, an internal investigation should also include:

• The results of drug and alcohol testing, if taken;
• The identity of any witnesses to the accident;
• The identity of any potentially liable third-parties; and,
• A cross-reference to prior injuries sustained by the employee.
• Free donuts and coffee for the person conducting the investigation

Office of the

Benefits Review Board

I WAS

HURT!

Natural progression