11-9-525. Compensation for disability — Second injuries.

11-9-525. Compensation for disability — Second injuries. (a)(1) The Second Injury Trust Fund established in this chapter is a special fund designed to ensure that an employer employing a worker with a disability will not, in the event that the worker suffers an injury on the job, be held liable for a greater disability or impairment than actually occurred while the worker was in his or her employment. (2) The employee is to be fully protected in that the fund pays the worker the difference between the employer's liability and the balance of his or her disability or impairment that results from all disabilities or impairments combined. (3) It is intended that latent conditions that are not known to the employee or employer not be considered previous disabilities or impairments which would give rise to a claim against the fund. (b)(1) Commencing January 1, 1981, all cases of permanent disability or impairment in which there has been previous disability or impairment shall be compensated as provided in this section. (2) Compensation shall be computed on the basis of the average earnings at the time of the last injury. (3) If any employee who has a permanent partial disability or impairment, whether from compensable injury or otherwise, receives a subsequent compensable injury resulting in additional permanent partial disability or impairment so that the degree or percentage of disability or impairment caused by the combined disabilities or impairments is greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of combined disabilities or impairments, then the employer at the time of the last injury shall be liable only for the degree or percentage of disability or impairment that would have resulted from the last injury had there been no preexisting disability or impairment. (4) After the compensation liability of the employer for the last injury, considered alone, which shall be no greater than the actual anatomical impairment resulting from the last injury, has been determined by an administrative law judge or the Workers' Compensation Commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by the administrative law judge or the commission, and the degree or percentage of disability or impairment that existed prior to the last injury plus the disability or impairment resulting from the combined disability shall be determined, and compensation for that balance, if any, shall be paid out of the fund provided for in § 11-9-301. (5) If the previous disability or impairment, whether from compensable injury or otherwise, and the last injury together result in permanent total disability, the employer at the time of the last injury shall be liable only for the actual anatomical impairment resulting from the last injury considered alone and of itself. However, if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in §§ 11-9-501 — 11-9-506 for permanent total disability, then, in addition to the compensation for which the employer is liable and after the completion of payment of compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under §§ 11-9-501 — 11-9-506 out of the fund. (6) The Treasurer of State shall be the custodian of the fund, and any interest accruing shall be added thereto. (7) The commission shall direct the distribution of the funds from the fund. (c)(1) In all cases in which a recovery against the fund is sought for permanent partial disability or for permanent total disability, the Treasurer of State as custodian shall be named as a party and shall be entitled to defend against the claim. (2) The Treasurer of State, with the advice and consent of the Attorney General, may enter into settlements as contemplated by §§ 11-9-804 and 11-9-805. (3) All awards for permanent partial disability or for permanent total disability affecting the fund shall be subject to the provisions of the Workers' Compensation Law, § 11-9-101 et seq., governing review and appeal. (d)(1) If more than one (1) injury in the same employment causes concurrent temporary disabilities, weekly benefits shall be payable only for the longest and largest paying disability. (2) If more than one (1) injury in the same employment causes concurrent and consecutive permanent partial disability, weekly benefits for each subsequent disability shall not begin until the end of the compensation period for the prior disability. (e)(1) No claims under this section shall be made on or after January 1, 2008. (2) For all claims for permanent partial disability or permanent total disability made on or after January 1, 2008, the employer at the time of the employee's compensable injury is liable for such benefits subject to this chapter, excluding subsections (a)-(d) of this section. (f)(1) A claimant who has been deemed permanently totally disabled and is currently receiving benefits from the Second Injury Trust Fund as of December 31, 2009, shall receive those benefits from the Death and Permanent Total Disability Trust Fund commencing January 1, 2010. (2) For all claims pending against the Second Injury Trust Fund on and after January 1, 2010, if a claimant becomes eligible to receive benefits for permanent total disability from the Second Injury Trust Fund, then upon completion of payment by the employer of its obligation under subdivision (b)(5) of this section, the claimant shall be paid the remainder of the compensation that would be due for permanent total disability from the Death and Permanent Total Disability Trust Fund.