Section 8(f) Relief Overturned Because of Deficient Record

On October 31, 2005, the claimant sustained a compensable rotator cuff injury and, after a hearing, the Administrative Law Judge (“ALJ”) awarded benefits.  The ALJ also considered the employer’s Section 8(f) petition, which argued that the employer was entitled to limit its liability for permanent partial disability compensation payments to 104 weeks.  The employer’s argument was that the claimant’s shoulder disability was greater because of a disabling heart attack that happened six months before the work injury.  The ALJ agreed, determining that the Section 8(f) requirements had been satisfied.   Specifically, the ALJ found that the claimant had a preexisting permanent partial disability (the heart condition); that the employer was aware of the preexisting condition; and that the preexisting heart disability made the claimant’s shoulder disability materially and substantially greater than it would have been without the preexisting condition.  The Director appealed the ALJ’s decision to the Benefits Review Board (“BRB”), which reversed on the grounds that “the only evidence before the ALJ of [the claimant’s] April 2005 heart attack was contained in medical records generated after the October 31, 2005 rotator cuff incident.”  In other words, there was no evidence of record to satisfy the requirement that the employer have knowledge, either actual or constructive, of the preexisting heart attack.  The employer appealed the BRB”s decision to the United States Court of Appeals, Eleventh Circuit, arguing that the BRB overlooked the medical statements made in claimant’s deposition testimony.  The problem was that the deposition testimony was not a part of the record.   In upholding the BRB’s decision, the Eleventh Circuit noted that the BRB is free to reverse an ALJ’s findings when the findings are not supported by any evidence of record.

POMTOC Signal Mutual Indemnity Assoc. v. Director, OWCP, No. 10-15867, 2011 WL 4807915 (11th Cir. Oct. 11, 2011).