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Claimant was involved in a compensable 2013 accident with Urgent Ambulance involving a herniated lumbar disc with radiating pain into his legs. Claimant’s symptoms improved to a point where they were tolerable but still present, and he returned to work with a new employer, Recovery Innovations. Claimant then alleged three separate incidents at Recovery Innovations, (1) a 2016 increase in low back symptoms felt days after moving furniture all day without a specific event, (2) a 2017 acute onset of back pain without radiation with lower pain levels than his initial accident, and (3) another 2017 incident where he woke up spontaneously with 10/10 low back pain without any specific connection to work. Claimant’s medical expert very confusingly testified that the first accident was responsible for the symptoms, then changed his testimony to say that each of the subsequent accidents were individually responsible for the symptoms and refused to exclude any of the four accidents as contributors to claimant’s injury.
The Board noted the successive carrier standard of Nally v. Standard Distributing was to be applied, meaning that to shift liability from the first to a subsequent accident, there would need to be an “untoward event” that resulted in a “new injury.” The Board commented that none of the subsequent allegations satisfied that standard as (1) moving furniture and feeling pain days later was not an acute incident, (2) feeling symptoms less severe than the initial accident was not a new injury, and (3) waking up spontaneously with 10/10 pain attributable to no specific work activity was also not an acute incident. The Board elaborated that the reason for theNally approach is that any chronic injury is liable to wax and wane. If a subsequent employer is going to assume liability for the entire condition whenever some work activity causes a flare up of the condition, it would be a strong disincentive for any employer to hire an employee who had been injured in a prior work accident. It would also complicate getting medical care if the insurer on the risk for a physical condition could shift with each new flare up. TheNally standard was crafted to prevent such an undesirable result.
The important takeaways from this Decision are that under Nally it can be very difficult to shift liability from one accident with one employer or carrier to a subsequent employer or carrier, but there are many different nuances ofNally that can be outcome determinative. If you have any questions concerning this Decision, or any successive employer or carrier issue, please feel free to contact Greg Skolnik, Partner, atHeckler & Frabizzio or any other attorney in our Workers’ Compensation Department.
Keita Bowels v. Urgent Ambulance, et. al., IAB Nos. 1406305, 1458022, 1471444 (Sept. 13, 2019).