32.0613 Injury increasing existing permanent physical impairment or resulting in death which would not have occurred except for existing impairment.

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(a) If an employee who has a permanent physical impairment from any cause or origin incurs a subsequent disability by injury arising out of and in the course of his employment, resulting in compensation liability for disability that is substantially greater by reason of the combined effects of the preexisting impairment and subsequent injury or by reason of the aggravation of the preexisting impairment than that which would have resulted from the subsequent injury, alone, the employer or his insurance carrier shall in the first instance pay all awards of compensation provided by this chapter, but such employer or his insurance carrier shall be reimbursed from the special fund created by 32.0516 for all compensation payments subsequent to those payable for the first 104 weeks of disability.

(b) If the subsequent injury of such an employee results in the death of the employee and it is determined that the death would not have occurred except for such preexisting permanent physical impairment, the employer or his insurance carrier shall in the first instance pay the compensation prescribed by this chapter, but shall be reimbursed from the special fund created by 35.0516 for all compensation payable in excess of 104 weeks.

(c) As used in this section, “permanent physical impairment” means any permanent condition, whether congenital or due to injury or disease, of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemployment if the employee should become unemployed. No condition may be considered a permanent physical impairment unless it would support a rating of disability of 200 weeks or more if evaluated according to standards applied in compensation claims, or is one of the following conditions:

(1) epilepsy;

(2) diabetes;

(3) cardiac disease;

(4) arthritis;

(5) amputated foot, leg, arm or hand;

(6) loss of sight of one or both eyes or a partial loss of uncorrected vision of more than 75% bilaterally;

(7) residual disability from poilomyclitis;

(8) cerebral palsy;

(9) multiple sclerosis;

(10) Parkinson’s disease;

(11) cerebral vascular accident;

(12) tuberculosis;

(13) silicosis;

(14) psychoneurotic disability following treatment in a recognized medical or mental institution;

(15) haemophilia;

(16) chronic osteomyelitis;

(17) ankylosis of joints;

(18) hyperinsulinism;

(19) muscular dystrophy;

(20) arterioscelerosis;

(21) thrombophlebitis;

(22) varicose veins;

(23) heavy metal poisoning;

(24) ionizing radiation injury;

(25) compressed air sequelae;

(26) ruptured intervertebral disc.

(d) In order to qualify under this section for reimbursement from the special fund, the employer must establish by written records that the employer had knowledge of the permanent physical impairment at the time that the employee was hired, or at the time the employee was retained in employment after the employer acquired such knowledge.

(e) An employer or carrier shall notify the Commissioner of any possible claim against the special fund as soon as practicable, but in no event later than 100 weeks after the injury or death.

(f) The special fund may not be bound as to any question of law or fact by reason of an award or an adjudication to which it was not a party or in relation to which it was not notified, at least 3 weeks prior to the award or adjudication, that it might be subject to liability for the injury or death.

(g) In all cases in which, following a previous disability, an employee receives an injury which is not covered by subsections (a) through (c), the employer shall provide compensation only for the disability caused by the subsequent injury. In determining compensation for the subsequent injury or for death resulting therefrom, the average weekly wages shall be such sum as will reasonably represent the earning capacity of the employee at the time of the subsequent injury.

History: 1967, PL 10-15.