permanent total disability and that the Claimant's permanent total disability is a result of a combination of the accident and the pre- existing disability. Frequently employer/insurer counsel will delve into a Claimant's past medical history to try to establish a pre-existing condition that will allow them to share the burden of a permanent total claim with the Fund. Another defense available to the Fund is the Thomas defense. In Subsequent Injury Fund v. Thomas, 275 Md. 628, 342 A.2d 671 (1975), the Claimant injured his back and had two surgeries. Before the accident, he had degenerative arthritis and arterio-sclerotic cerebral vascular disease, which worsened significantly after the accidental injury. The Commission found the Claimant permanently and totally disabled with 40% of the disability due to the accident, 20% due to pre-existing conditions and the balance of the disability (40%) due to a progressive condition that developed subsequent to the accident and was unrelated to the accident. On appeal, the Claimant alleged that the Fund should be responsible for the 40% disability that developed after the accident and was unrelated to it. The Court of Appeals stated, "The Fund was established to encourage the hiring of workers who have a permanent impairment which may be an obstacle to employment, relieving the employer of liability for a disability attributable to an impairment which predated the occupational injury. Its purpose is simply to remove an obstacle to employment, not to insure workers against a deterioration of the body occurring after and unrelated to the occupational injury.” Although Thomas and Compton are the primary defenses relied upon by the Fund, the statute also provides other relief. Section 9-804 gives the Fund credit for prior awards received by the Claimant from the Maryland Commission or a similar Commission in another state. In some cases the credit can entirely eliminate the Fund’s liability. Note, however, that in permanent total disability cases the credit provides relief only on a weekly basis.
5
Powered by FlippingBook