Prior to the Subsequent Injury Fund (SIF), the “full responsibility” rule required the employer to pay the entire disability that followed a second accident. The “apportionment” rule required employers only to pay benefits only for the second accident. The purpose of the SIF is to persuade the employer to employ handicapped individuals by limiting liability which the employer would otherwise incur, in the event that a previously disabled or injured individual sustained a subsequent injury.
It is the intent of the SIF law that the total compensation to which the covered employee is entitled equals the amount of compensation that would be payable for the combined effects of the previous impairment and the subsequent accidental injury or occupational disease.
The following are necessary for an injured worker to collect benefits from the SIF:
- That the workers sustain an accidental injury or occupational disease at work;
- That the worker have a permanent impairment or disease which existed before the present accidental injury or occupational disease;
- That the previous impairment was or was likely to be a hindrance or obstacle to the worker’s employment;
- That the combined effects of the recent accident and the previous impairment be substantially greater than the effects of the recent accidental injury or occupational disease alone;
- That the previous impairment and the recent accidental injury each result in permanent disability for 125 weeks; and
- That the overall disability be more than 50% of the body as a whole.
The SIF only makes payments for PPD or PTD, not temporary awards or medical treatment and benefits. The Commission will deduct from any SIF liability the dollar amount of previous awards of compensation for PPD, including prior settlements, provided the prior PPD contributes to the claimant’s current PPD. The previous permanent impairment is evaluated as of the date of the current accidental injury or occupational disease.
The “Thomas Doctrine” states that if a previous impairment worsens and it’s not the result of the accidental injury or occupational disease, then it is not compensable. The claimant can be found PPD or PTD solely from the accidental injury or occupational disease, with no disability apportioned to the previous impairment. The SIF does not pay at SD rates.
An attorney should consider impleading the SIF if there is a claimant with a potentially serious compensable injury, such as a back injury requiring disc surgery, or injury that appears to be slow in healing or has the potential to create a true industrial disability. In order to qualify for the 125-week requirement, there must be a disability award of 25% from the accidental injury or occupational disease. Next, determine potential pre-existing injuries and conditions, especially in people who are older or people who are in poor health. The attorney will need to have the pre-existing conditions evaluated to determine their percentage of impairment as it relates to the current impairment. Prior compensation awards are accepted by the Commission to determine this.