The Subsequent Injury Fund is intended to compensate claimants for the combination of their conditions from the accident or injury and their conditions that pre existed their accident. There are strict requirements that must be met in the Maryland Workers’ Compensation Act in order to recover from the Subsequent Injury Fund. If the requirements are met, the employer must pay the portion of the award that is attributable to the accident and the Subsequent Injury Fund must pay the portion of the award that was for the pre-existing conditions. The Subsequent Injury Fund will not be in the case until they are properly impled in the case. There are time deadlines that must be complied with in order to implead the Subsequent Injury Fund. If those deadlines are not met, the Subsequent Injury Fund may not be present at your hearing and the claimant may lose the ability to further involve the Fund.
The criteria are set out in 9-802 of the Labor and Employment Article of the Annotated Code of Maryland and must be present to obtain liability from the Subsequent Injury Fund in a permanent disability claim. Essentially, the Maryland Workers Compensation Commission must find a disability of at least 50% to the body with at least 25% to the body from the accident and at least 25% from the pre existing conditions.
In claims where the claimant has died due to a combination of the injuries from the accident and the pre existing conditions the employer will liable for the portion of the death benefit that is due to the compensable event and the Subsequent Injury Fund will be liable for the remainder of the award.
The attorney for the claimant should pay close attention to Subsequent Injury Fund liability, particularly with older claimant’s as they are the ones that are more likely to have pre-existing conditions. Frequently, in Subsequent Injury Fund cases, the Subsequent Injury Fund will raise the defense of “Thomas.” This defense is one where the Subsequent Injury Fund will rely on their claims that the pre-existing condition has worsened since the accident. This worsening of the pre-existing conditions is not compensable and can seriously affect the amount of money the claimant is eligible for. A finding of “Thomas” can preclude a finding of permanent total disability. An experienced claimant’s lawyer may make a claim for permanent total disability and try to prove the entire award should be place against the employer irrespective of any “Thomas” worsening. The Subsequent Injury Fund will get a credit for any prior awards that were paid for a workers compensation permanency award or settlement. There can be some very tricky questions surrounding the question of: “What exactly does the Subsequent Injury Fund get a credit for?”. Subsequent Injury Fund cases require great attention to past medical history and a very thorough preparation of the claimant for the hearing as these cases can be difficult to prove at the hearing.
Please contact our office and speak to one of our Maryland Workers Compensation Lawyers regarding this issue.