JUDGE AVERY (COVINGTON) FINDS CLAIMANT IS NOT ENTITLED TO PPD AWARD WHERE HE WAS ALREADY PERMANENTLY TOTALLY DISABLED BEFORE ACCIDENT

 

Excerpt

While, for reasons previously discussed, I do not find Claimant’s obtaining employment
with Employer to be a bar to his recovery, I find what is a bar to his ultimately receiving
compensation is the fact he was totally disabled for the job he was performing at the time he
tripped and fell.  As Employer/Carrier argue, Claimant’s economic disability is no greater now
than it was before the November 25, 2008 accident, even if his back conditioned is worsened and
he has a neck injury.  Claimant was not medically qualified to perform the heavy work which he
sought and secured from Employer at the time of the accident, and he still is not according to the
present restrictions assigned to him.  In other words, for the job of sand blaster, Claimant was
totally disabled before and after the November 25, 2008 accident; and therefore, he has sustained
no loss of wage earning capacity as a result of the most recent accident.   Thus, Claimant has
failed to make a prima facie case of total disability.  To find Claimant, who was already totally
disabled for the job he was performing, more disabled because of his most recent fall is
redundant.

Clary vs. BAE Systems Southeast