Gaining compensation for the aggravation of a previous injury

The Parties

Mr. Myshka worked as a welder for Electric Boat. However, back in 1999, before his employment at Electric Boat, he successfully claimed against his previous employer, Pequot River Shipworks, for hand and arm injuries (both hands, both arms) from working as a welder. His hand injuries turned out to be ongoing.

Electric Boat (known as General Dynamics Electric Boat) designs and constructs submarines for the United States Navy. They are located in Groton, Connecticut.

The Facts

Possibly the most interesting part of this case concerns Mr. Myshka’s previous claim. His 1999 injuries were the result of cumulative trauma, and he was paid out a lump sum for his settlement. Two separate doctors suggested either 3 or 14% impairment for those earlier injuries.

In 2002, Mr. Myshka returned to working for Electric Boat, and he went back to using welding and grinding tools.  His injuries worsened and he had trouble picking up and holding objects.

After three surgeries (the details are below), Mr. Myshka received a permanent partial disability rating of 8% to his right arm based on the combination of issues with his right fourth trigger finger, his right cubital tunnel syndrome, and his right carpal tunnel syndrome. The doctor further testified that if he were to isolate each of Mr. Myshka’s three separate conditions, he would assign a rating of 5 – 7% for the cubital tunnel syndrome, 3 – 5% for Mr. Myshka’s carpal tunnel syndrome, and 2% for the trigger finger.

Employment Conditions

The injuries

Mr. Myshka’s earlier injuries (before the current claim) were bilateral injuries to his hands and arms.

For the current claim, his injuries were diagnosed as being a five-year history of paresthesia (I. e. the ‘pins and needles’ feeling) in both hands. This issue awakened him at night. Furthermore, Mr. Myshka experienced numbness in his hands when holding objects. He had three surgeries:

  • A trigger release of his right fourth finger
  • Neurolysis (a pain blocker) of the ulnar nerve to address cubital tunnel syndrome (a kind of stretching of the ‘funny bone’ nerve) at the right elbow and
  • A right carpal tunnel release

The employer’s actions

Electric Boat voluntarily paid Mr. Myshka temporary total disability benefits from late 2011 to early 2012, plus medical benefits.  Before the hearing in this case, the parties resolved the compensation issues with respect to Mr. Myshka’s right elbow and right fourth finger medical conditions. As a result, Electric Boat then paid Mr. Myshka compensation under the schedule for a 5% permanent partial disability to the right arm and for a 2% disability to the right fourth finger.  Therefore, the only one remaining issue was presented at the hearing. This involved whether Mr. Myshka was entitled to a scheduled award of permanent partial disability benefits for the impairment to his right hand resulting from his carpal tunnel condition.

Results of the Initial Hearing

In his Decision and Order, the administrative law judge noted the parties’ stipulations, among other things, that Mr. Myshka sustained an injury on August 26, 2011, and that Electric Boat had paid Mr. Myshka temporary total disability and medical benefits for that injury.  Despite this information, the administrative law judge found that Mr. Myshka failed to establish a clear case that he had suffered a work-related injury to his right hand.  Based on his determination that the present impairment rating to Mr. Myshka’s right hand was lower than the 14% impairment rating assessed to each of Mr. Myshka’s hands by his own doctor in 1999, the administrative law judge concluded that Mr. Myshka did not show that he had sustained a new injury or even an aggravation of his pre-existing right hand condition.  As a result, the administrative law judge denied the permanent partial disability benefits sought by Mr. Myshka.

The Appeal

On his appeal, Mr. Myshka contended that the administrative law judge erred in finding that he did not establish that he had sustained a new injury or aggravation of his right hand condition which could be attributed to his work for Electric Boat.  Electric Boat responded, urging that the administrative law judge’s denial of benefits be affirmed.

The Ruling on Appeal

The administrative appeals judges agreed with Mr. Myshka that the administrative law judge erred in finding that he did not establish that he injured his right hand at work because he did not make a clear case.  They felt that the administrative law judge’s decision reflected a mistake in applying the aggravation rule.

They determined that, contrary to the administrative law judge’s finding that Mr. Myshka failed to establish his case; unopposed evidence established that he actually satisfied both elements of his case.  Specifically, it was undisputed that Mr. Myshka sustained an injury, right carpal tunnel syndrome, for which he underwent surgery, and that working conditions existed, including Mr. Myshka’s use of welding and grinding tools, which could have worsened his hand condition.  Mr. Myshka testified that his hand condition had worsened after his employment at Pequot River Shipworks, and the evaluating physician wrote that Mr. Myshka had a five-year history of paresthesias before his October 5, 2011 examination.

Additionally, the parties agreed that Mr. Myshka sustained injuries at work on August 26, 2011, and there appeared to be no dispute between the parties that Mr. Myshka was entitled to temporary total disability and medical benefits for his work-related carpal tunnel syndrome.  Therefore, the issue presented for adjudication seemed to be whether the permanent impairment to Mr. Myshka’s right hand after he reached maximum medical improvement following his carpal tunnel release surgery could have been causally related to his employment with Electric Boat. Hence they remanded (returned for additional consideration) the case for the administrative law judge to address, consistent with the Section 20(a) presumption and the aggravation rule, whether Mr. Myshka had a disabling right hand condition which was causally related to his employment with Electric Boat.  Furthermore, they stated, if the conditions of Mr. Myshka’s employment with Electric Boat aggravated, contributed to or combined with Mr. Myshka’s pre-existing right hand condition, then the entire resulting permanent disability would be compensable.

The Takeaway

A clear case can be made for coverage and a disability rating even if the claimant was injured before, and the incident in question caused not the injury, but its aggravation.

Mr. John Myshka v. Electric Boat Corporation
https://www.dol.gov/brb/decisions/lngshore/published/14-0161.htm