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Second workers comp injury may be covered under "usual exertion" rule

The workers' compensation process can become even more complex if a worker suffers a second, related injury while on the job.
 
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    December 05, 2013 /24-7PressRelease/ -- Second workers comp injury may be covered under "usual exertion" rule

Article provided by Schuster Jachetti LLP
Visit us at http://www.mydelawarelawyer.com

Successfully making a claim for workers' compensation benefits can be a complex process, and may often require an appeal of denied benefits. However, the process can become even more complex if a worker suffers a second, related injury while on the job.

Under Delaware law, a worker may recover workers' compensation benefits, even if the worker suffered from a preexisting condition at the time of his or her second injury. The recent Delaware Superior Court case of Parson v. City of Wilmington provides an example.

A "sanitation chucker" suffers two injuries

The claimant worked in the city of Wilmington's sanitation department for approximately 15 years. At the time of his injury, he was working as a "sanitation chucker," which involved either collecting trash curbside and tossing it into a garbage truck, or using a trash truck hook to lift and empty a dumpster.

The claimant initially suffered a compensable work injury to his back when he was hit by a vehicle. He was unable to return to work for about six months. After his return, he was placed on restricted duty because of pain, but was eventually released to working full-duty without any restrictions.

While back on curbside duty, the claimant was picking up a trash bag from the curb to put into the truck when he felt a sharp pain in his back and lower hip which radiated to his leg. The claimant reported the back pain to his driver; for the rest of the route, the claimant laid down in the back of the cab. Later, one of the claimant's doctors would testify that the second injury was an intervening event which caused an aggravation of his original low back injury.

After making this second claim, the Industrial Accident Board found that the claimant had not met his burden of proving the existence of a "new" injury and that the pain was simply a continuation of the prior injury. Specifically, the Board relied on rulings of law in an earlier case to determine that the claimant's symptoms did not equate to an "aggravation" but instead were only a "recurrence" of the earlier injury. The claimant appealed, arguing that the Board had committed a legal error in applying those earlier rulings to his claim.

The "usual exertion" rule

On appeal, the Delaware Superior Court found that the Board had indeed erred. The Board should have applied the "usual exertion" rule in reviewing claimant's second injury. Under this rule, irrespective of a previous condition, an injury is compensable if the ordinary stress and strain of employment was a substantial cause of the injury.

Although a worker with a preexisting condition may be more prone to injuries, a preexisting condition alone will not produce an injury. Some other contributing factor must be present. When that factor is the everyday stress and strain of a worker's job, he or she should not be denied compensation. Thus, the Board's decision against the workers compensation claim was reversed, and sent back to the Board to reconsider using the appropriate legal standard.

Many claims initially denied

Whether you have suffered a single injury, or multiple related injuries, you should not give up if your workers' compensation claim is initially denied. Claimants frequently must appeal a decision in order to receive the compensation they deserve. If you are injured, it is crucial that you seek an experienced attorney who can carefully evaluate your claim and, if necessary, help you navigate the appeals process.



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