Employers and Carriers are seeing a trend under the Defense Base Act (DBA) with Claimants bringing multiple claims for different alleged conditions, including physical injuries, psychological injuries, and claimed hearing loss. In a recent decision, the Chief Administrative Law Judge (ALJ) agreed that a secondary claim was included in a prior settlement and dismissed the new claim by summary decision.

The Facts

The claimant had previously filed a claim for a psychological injury with a date of injury in August 2013. That claim was settled for $82,500 in May 2023.

Only months later, in December 2023, she filed a new claim, a secondary claim, for an alleged pulmonary injury also arising in August 2013 after securing new counsel. The pulmonary claim was brought against the same employer and carrier with which she had just settled.

In her PTSD claim (her first claim), she had alleged her complaints included chest pains and difficulty breathing. The Section 8(i) settlement agreement allocated settlement funds both to her psychological condition and separately to the “physical manifestations of psychological conditions.”

The Employer and Carrier filed a Motion for Summary Decision in the secondary claim on the grounds that her prior settlement included the claimed pulmonary injury. Claimant argued that she wasn’t aware of her respiratory injury until receiving a formal diagnosis in November 2023 and that the respiratory injury was separate and independent from the PTSD claim.

ALJ Summary Decision

The ALJ found that the language of the 2023 settlement was not ambiguous as to whether the parties intended to include Claimant’s respiratory illness. Because the parties allocated funds to expressly settle any physical manifestations of her psychological claims, which included difficulty breathing and chest pain, there was no genuine issue of fact that the parties settled Claimant’s respiratory claim in 2023.

The Chief Judge also found that the pulmonary claim was in existence at the time of the May 2023 settlement. Citing the Benefits Review Board’s decision in Clark v. Newport News Shipbuilding & Dry Dock Co., BRB No. 98-1508, slip op. at 6 (BRB Aug. 17, 1999); see also 20 C.F.R. § 702.241(g), the court found that because the 2023 settlement specifically listed chest pain and trouble breathing, the respiratory injury was in existence at the time of the 2023 settlement agreement. Unlike in Clark, where the settlement agreement did not describe the nature of a particular injury, but instead generally referred to “other” injuries, the inclusion of breathing problems and chest pain, as well as the designation of funds for physical symptoms, was sufficient to discharge the Employer’s liability for the injury and preclude the subsequent claim for respiratory injuries.

The judge stated that when parties settle claims for disability compensation and medical benefits, they accept the risk that their injuries may become more or less symptomatic over time. Such is the case in this case where it appeared Claimant’s respiratory problems, present when she signed her settlement agreement in February 2023, may have worsened in the subsequent months before she filed her claim in December 2023.

He found it was of no legal consequence that Claimant did not receive a formal diagnosis of a respiratory injury until November 2023. The determinative issue was whether her respiratory claim was in existence at the time she signed the settlement agreement in February 2023, whether the parties intended to include the claim in their agreement, and whether she received compensation for those injuries. Because the answer to those three questions was an unequivocal yes, summary decision was proper.

Atanasov v. Fluor ConOps, Ltd., Case No. 2024-LDA-03103 (December 4, 2024).