John Klor
Wallace Klor & Mann, PC
WSIA Amicus Subcommittee Chair
July 2011
WHAT CONSTITUTES "PREVIOUS BODILY DISABILITY" FOR SECOND INJURY FUND REIMBURSEMENT
Crown Cork & Seal v Sylvia Smith
and Dept. of Labor & Industries.
No. 83854-2
(June 23, 2011)
The Washington Supreme Court has rendered a decision defining what constitutes a "previous bodily disability" for second injury fund coverage under RCW 51.16.120(1). In Crown, the employer argued that a "previous bodily disability" may be shown when the preexisting disability impacts an employee's daily activities enough to limit vocational opportunities. Crown asserted that second injury fund coverage should be denied only when the preexisting condition is latent or rarely interferes with an employee's ordinary pursuits of life. The Department contended that RCW 51.16.120(1) contemplates a narrowly focused test requiring that the employee's previous disability substantially affect that employee's ability to do his or her current job. The Department argued that a "previous bodily disability" must be evident by solely looking to whether the disability substantially impacted the employee's work performance. The Court did not embrace either position.
The Court held that an employer seeking second injury fund coverage under RCW 51.16.120(1) bears the burden of establishing that its employee had a "previous bodily disability," and the employer must produce evidence that it either hired or retained the employee in an objectively injured state. Transitory conditions arising from natural age-related degeneration or fatigue due to exertion in the workplace are insufficient to show previous bodily disability. However, the evidence to meet this burden is not limited to evidence showing that the disability effectively impaired the employee's ability to perform his or her work duties. The Court acknowledged that a previous bodily disability may be considered disabling without the employee exhibiting outward signs of workplace impairment if the preexisting disability materially diminished the employee's ability to perform the activities of daily living and combined with an industrial injury to cause permanent and total disability.
In practice, this decision enables self-insured employers to establish “previous bodily disability” for purposes of second injury fund relief through a showing of an objectively injured state that either: 1) effectively impacts the employee’s performance in the workplace; or 2) materially diminishes the employee’s functional ability to perform the routine activities associated with daily living.
as of 11 July 2011
