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The Longshore Aggravation Rule

What happens in your Longshore or Defense Base Act (DBA) claim if you re-injure yourself working for a different employer after your initial accident?

The answer, like many legal questions, is “it depends.” If a Claimant’s disability results from the natural progression of a prior injury and would have occurred notwithstanding a subsequent injury, the prior injury is a compensable injury and the Claimant’s employer at the time of the prior injury is responsible. This was the holding in Wallace v. Cerris Marine Terminals. Consequently, if the subsequent injury is one that was natural and unavoidable as a result of your initial injury, the initial employer will be paying your benefits under the Longshore Harbor Workers’ Compensation Act and/or the Defense Base Act. If, however, the subsequent injury aggravates, accelerates or combines with the earlier injury to result in the Claimant’s disability, the subsequent injury is a compensable injury and the subsequent employer is responsible. This is what is commonly referred to as the “Aggravation Rule”, and it can cause numerous problems in obtaining benefits under the Longshore Act.

If you suffer an injury with one employer and begin working with another covered employer, the insurance carrier for the initial employer may thereafter stop benefits if they have reason to believe that you have aggravated your injury with the new employer. If the insurance ceases paying benefits based on this Aggravation Rule, the insurance carrier for your new employer will have to be notified of this claim, and a determination of which carrier is responsible will ultimately be made by an Administrative Law Judge.

The Administrative Law Judge’s duty is to determine whether, under the Aggravation Rule, a second injury aggravated, exacerbated or combined with a prior condition that resulted in a disability. There is no requirement that the second injury fundamentally or permanently alter the underlying (original) condition, as a worsening of a Claimant’s symptoms is sufficient. It has been held that an increase in pain or the re-manifestation of symptoms due to subsequent employment is an “injury” and thus would implicate the Aggravation Rule.

The answer to whether a condition will be deemed aggravated or considered a natural progression of the original injury will depend on what the evidence in the claim has revealed. That evidence will consist of depositions of physicians, the Claimant’s deposition and medical records, among many other potential records that may reveal whether the Claimant’s condition was indeed aggravated, or whether this “new” injury was a natural progression of the original injury.

If the Carrier has stopped your benefits and has alleged that they are no longer responsible for your injury due to an aggravation, it is important to retain competent counsel to represent you. This is just one issue that may arise in a typical Longshore/Defense Base Act (DBA) claim. Attorneys Jo Ann Hoffman & Associates, P.A. handles Longshore and Defense Base Act claims throughout the country. Feel free to contact us for a free consultation regarding your case

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