Employer’s Request to Shift Liability for Permanent Disability to Longshore Special Fund is Denied

March 3, 2017

Types : Alerts

In Cianbro Corp. v. Dir., Office of Workers’ Comp. Programs, Respondent, an employee who suffered permanent lung impairment during his employment, was awarded disability benefits.  Petitioners, an employer and its insurer, sought review of an order denying petitioners’ motion for relief under section 8(f) of the Longshore and Harbor Workers’ Compensation Act.  33 U.S.C. § 901(f)(1).

Section 8(f) enables employers to shift liability for certain disability benefits to the Longshore Special Fund.  To obtain relief under section 8(f), an employer must show that the employee had a preexisting permanent disability which made the permanent disability “materially and substantially greater than that which would have resulted from the subsequent injury alone.”

The Second Circuit considered whether substantial evidence supported the Administrative Law Judge’s findings of fact and whether the United States Department of Labor Benefit’s Review Board made any errors of law.  Although the respondent suffered from preexisting asthma, the Second Circuit concluded that petitioners’ evidence, a letter from a doctor, merely restated the relevant section 8(f) legal standard without explaining how respondent’s preexisting asthma rendered his ultimate disability materially and substantially worse than it otherwise would have been.  Therefore, the Second Circuit denied the petition for review.


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