Fmc Corporation v. Director, Office of Workers Compensation Programs Robert A. Whitcomb

I

Claimant Whitcomb began working for FMC in 1975, at which time he told his employer that he had bursitis in his right shoulder. Whitcomb also had a heart murmur which he did not disclose. In 1976, while working for FMC, Whitcomb sustained an employment related lower back injury which eventually required disc surgery and for which he was awarded temporary total disability benefits. During Whit-comb’s convalescence, it was discovered that Whitcomb also had pre-existing arthritis. In 1982, FMC sought modification of Whitcomb’s award, requesting, in part, relief under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 908 (f). Section 8(f) provides that where an employee is permanently and totally disabled, and the disability is found not to be caused solely by the injury incurred on the job, the employer's liability is limited to compensation for the applicable prescribed period, or for 104 weeks, whichever is greater.

The AU denied FMC section 8(f) relief, holding that it was precluded from raising this basis for relief since it failed to raise this issue at the first hearing. FMC appealed to the Benefits Review Board (the “Board”). The Board found that the AU had…