A Delaware firefighter who twice suffered a workplace injury has been denied workers’ compensation benefits for his second claim because of the way he settled his first claim.
He was denied compensation for the second injury because it was judged to be a recurrence of the earlier injury which he had agreed to settle by accepting a lumo sum payment and releasing the workers compensation insurer from further liability.
The Delaware Supreme Court earlier this month upheld the denial of his claim. The court affirmed that under settled law, a recurrence of a work injury is compensable by the original carrier that covered that injury, while an aggravation of an injury caused by a second accident or event is compensable by the carrier that insured the employer at the time of the aggravation.
In 2015, while working for the Belvedere Fire Company, Corey Ferrell was involved in a motor vehicle crash, sustaining a compensable back injury. In 2018, he accepted a commutation of his claim by accepting a one-time lump sum payment and releasing the insurer for Belvedere from further liability.
In 2023, Ferrell injured his back again. This time, working for the Wilmington Fire Department, he was on a call at a high-rise apartment building. He said that he felt a “pop” in his back when he was ascending stairs to bring special equipment in a “high-rise pack” weighing 30–40 pounds to a fellow firefighter. A follow-up MRI showed disc bulges, herniations, and a disc protrusion in the same anatomical area as the 2015 injury.
Wilmington FD denied Ferrell’s claim for workers’ compensation and the parties submitted the disputed claim to the Industrial Accident Board (IAB).
The IAB found that the 2023 incident did not aggravate the 2015 injury and did not cause a new, separately compensable injury to Ferrell. The IAB noted that a comparison of Ferrell’s MRIs showed the expected progression of spinal deterioration from the 2015 injury, and that the act of walking up the stairs carrying the high-rise packs was not enough to create a “genuine intervening event.”
The IAB concluded that the 2023 incident was a recurrence of Ferrell’s 2015 injury rather than an aggravation of that injury. The IAB therefore held that liability for the 2023 incident would remain under the 2015 claim incurred while he was at Belvedere and denied Ferrell’s petition for workers’ compensation coverage from the Wilmington FD.
Effectively, the responsible insurer for what was determined to be a recurrence of his back injury was the insurer for Belvedere.that was released from responsibility by the commutation that resolved his first claim.
Ferrell appealed the IAB’s decision to the Superior Court. The Superior Court affirmed the IAB’s findings. The case rose on appeal to the Delaware Supreme Court which earlier this month agreed with the lower court and IAB.
On appeal, Ferrell urged the court to reverse on two grounds. First, he contended that the IAB used the wrong standard when it applied the “aggravation” versus “recurrence” analysis announced in Standard Distributing Co. v. Nally. Ferrell argued that the 2023 incident was an untoward and intervening event that created a separate compensable injury.
Second, Ferrell argued that the IAB’s decision was not supported by substantial evidence.
However, the high court concluded the Superior Court and the IAB applied the correct standard and that the IAB’s decision was supported by substantial evidence. The court therefore affirmed the denial.
According to the court, in most instances, the distinction between a recurrence and an aggravation simply apportions liability between carriers and does not result in a lapse of coverage for a worker. But because Ferrell commuted his first claim and released Belvedere from further liability, he could not recover unless the 2023 injury was an aggravation caused by a second event.
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Workers’ Compensation
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