ALJ RICHARD CLARK DECIDES CLAIMANT IS ENTITLED TO TOTAL TEMPORARY AND PERMANENT DISABILITY PAYMENT

AMY MUNDY v. PLATYPUS MARINE

Read Full Decision Here

Excerpts

With respect to the current nature and extent of disability, Claimant argues that her left

arm condition has rendered her permanently and totally disabled. ALJX 1 at 18. She argues that

she has diligently pursued employment, but Employer has failed to identify suitable alternative

employment that account for all of her physical and mental impairments.

Id. at 20-22. Majestic argues that in spite of Claimant’s physical and mental impairments, suitable

alternative employment has been identified drawing on Claimant’s prior work skills, and that she is

therefore only permanently partially disabled. ALJX 2 at 17-18. Chartis concedes that Claimant

was temporarily totally disabled from January 9, 2008, to March 20, 2008, but argues that there

was no permanent impairment resulting from the December 20, 2007, shoveling incident, and

defers to Majestic’s argument concerning the extent of disability. ALJX 3 at 17.

With regard to the extent of the disability, a claimant is presumed to be totally disabled
where claimant can establish that a work-related injury prevents her from performing or

returning to her usual employment.

In other words, a claimant may still be deemed totally disabled “when physically capable
capable of performing certain work but otherwise unable to secure that particular kind of work.”

Because Claimant’s December 20, 2007 shoveling injury constitutes a permanentaggravation of her underlying condition, Chartis, the carrier at the time of this injury, is the las

responsible carrier. As the last responsible carrier

Chartis is solely liable for the entire resulting disability from December 20, 2007

the date of the aggravation forward. Found. Constructors, 950 F.2d at 624. Chartis should have paid

Claimant wage compensation and medical benefits from this date forward. As such, Majestic is entitled to reimbursement for all payments made to Claimant after December 20, 2007.

Conclusion

1. Claimant is entitled to temporary total disability benefits from November 14,

2006, through March 20, 2007; temporary partial disability benefits from March

21, 2007, to May 14, 2007; and temporary total disability benefits from May 15,

2007, to September 23, 2007, based on an average weekly wage of $438.88.

2. Claimant is entitled to temporary total disability benefits from January 8, 2008, to

August 1, 2011, and permanent total disability benefits from August 2, 2011, to

the present and continuing based on an average weekly wage of $438.74.
3. Majestic shall provide all disability benefits owed to the Claimant based on the

average weekly wage of $438.88 beginning on November 14, 2006, through

December 19, 2007, less the benefits it previously paid Claimant during this time

period. This includes any unpaid medical expenses, unpaid temporary total

disability benefits from November 14, 2006, through March 20, 2007; unpaid

temporary partial disability benefits from March 21, 2007, to May 14, 2007; and

unpaid temporary total disability benefits from May 15, 2007, to September 23,

2007.

4. Chartis shall provide all disability benefits owed to the Claimant based on the

average weekly wage of $438.74 beginning on December 20, 2007, and

continuing, less the benefits it previously paid Claimant during this time period.

This includes any unpaid medical expenses, unpaid temporary total disability

benefits from January 8, 2008, to August 1, 2011, and unpaid permanent total

disability benefits from August 2, 2011, to the present and continuing.

5. Chartis shall reimburse Majestic for all medical and compensation benefits

Majestic paid after the December 20, 2007, injury, plus interest at the statutory

rate set forth in 28 U.S.C. § 1961.