Second of Three Employers Was Last Responsible

Claimant was working as a longshoremen for Employer when he sustained an injury to his back after stepping into a hole. Claimant received temporary total disability benefits until he was released to return to work at full duty. Upon his return to work, Claimant worked for various employers. During his employment with Employer II, Claimant was responsible for lifting and throwing luggage, which he claimed caused pain in his back. Though Claimant sought medical treatment for this pain, he did so while simultaneously working for another employer, Employer III. Approximately one year after Claimant experienced this pain, he filed a claim under the LHWCA and underwent invasive back surgery. The employers disputed which employer was responsible for the resulting injury. The Administrative Law Judge found that Claimant’s initial injury was aggravated, accelerated, or combined with the new pain to result in his disability and need for surgery. As a result, Employer II was responsible for Claimant’s disability, as enunciated by the aggravation doctrine.


The aggravation doctrine has been described as follows:
If the disability resulted from the natural progression of a prior injury and would have occurred notwithstanding the subsequent injury, then the prior injury is compensable and accordingly, the prior employer is responsible. If, on the other hand, the subsequent injury aggravated, accelerated or combined with claimant’s prior injury, thus resulting in claimant’s disability, then the subsequent injury is the compensable injury, and the subsequent employer is responsible. See Kelaita v. Dir., OWCP, 799 F.2d 1308, 1311 (9th Cir. 1986).


Employer II argued that Claimant’s disability was the natural progression of his initial injury, and that the incident occurring during its coverage was only a temporary exacerbation of Claimant’s condition.  Therefore Employer II argued it was not responsible. The ALJ, and subsequently the Benefits Review Board, disagreed. In the instant case, the BRB recognized conflicting medical opinions regarding the effect of Claimant’s employment with Employer II on his disability. The BRB also acknowledged, and agreed with the ALJ’s determination, that there is no requirement that the second injury fundamentally or permanently alter the underlying condition.  A worsening of claimant’s symptoms is sufficient. Marinette Marine Corp. v. Director, OWCP, 431 F.3d 1032, 39 BRBS 82 (CRT) (7th Cir. 2005). Though Employer II appealed the BRB affirmation to the circuit court, Employer II was ultimately found liable.


Wallace v. Ceres Marine Terminals