Lung Condition First Diagnosed 20 Years Later Was a Second Injury

Decedent was exposed to asbestos dust and fibers in the 1940s and 1950s. In 1977, he was diagnosed with severe chronic obstructive pulmonary disease (COPD). By 1979, Decedent was totally disabled due to extensive arthritis, chronic heart condition, and chronic pulmonary condition. Twenty years later, in 1999, Claimant was first diagnosed with lung cancer. Then, in 2001, Decedent passed away. The question raised in this case was whether or not the employer was entitled to Section 8(f) relief for continuing death benefits payments to Decedent's widow. In the Fourth Circuit, "to establish entitlement to Section 8(f) relief in a case involving a post-retirement occupational disease, an employer need show only that an employee's pre-existing permanent partial disability pre-dated the manifestation of the occupational disease that constitutes the 'second injury,' and that the employee's death is not due solely to the subsequent work injury but was contributed to or hastened by the pre-existing disability." During a lengthy procedural history, Employer's request for Section 8(f) relief was improperly denied twice. The administrative law judge determined that Decedent's lung cancer was not a "second injury," and instead that it was the natural progression of Decedent's earlier asbestos injury. The Benefits Review Board disagreed. The undisputed evidence revealed that Decedent was diagnosed with COPD in 1977, but that he was not first diagnosed with lung cancer until 1999. "The fact that [D]ecedent's lung cancer may have arisen, in part, from his exposure to the same asbestos that contributed to the COPD and asbestosis, does not establish that this condition is not a 'second injury.'" Not only was the lung cancer a "second injury," Decedent's pre-existing COPD and asbestosis contributed or hastened Decedent's death. Employer was entitled to Section 8(f) relief. Midyette v. Newport News Shipbuilding and Dry Dock Co., No. 10-0700 (Ben Rev. Bd. Jul. 20, 2011).

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