Richard Ashley v. S.D. Warren Co.

Insurance Company

Constitution State

Date Decided

August 2, 2022

Panel Members

Elizabeth Elwin

Tom Pelletier

Mike Stovall


Subsequent Non-Work Injury



File Size

144 KB


Summary from the Troubh Heisler Attorneys

Richard Ashley v. S.D. Warren Co. (attached)- The Appellate Division has ruled that conditions such as advanced age, obesity, and poor general health do not constitute subsequent non-work-related injuries or diseases that would permit the application of section 201(5) to reduce incapacity benefits. In Ashley v. S.D. Warren (attached) the employee was found in a 2000 a decree to be totally incapacitated due to the physical effects and psychological sequela of compensable lower extremity and shoulder injuries. Relying on medical evidence that the physical effects of the injury had improved and the psychological sequela was no longer incapacitating, the employer filed a petition for review.

The independent medical examiner found that the employee had sedentary work capacity but that given his age, weight, and general medical condition it was unlikely that he would be able to return to work. The employer argued that the employee's age, weight, and general medical condition should be regarded as subsequent non-work-related injuries or diseases under section 201(5), requiring the Board to separate the effects of the work injuries from the subsequent non-work-related conditions and determine the appropriate level of partial incapacity. ALJ Jerome ruled that those conditions were not subsequent non-work-related injuries or diseases, and therefore section 201(5) did not apply. The Appellate Division affirmed. Accordingly, an employee whose injury is only partially disabling may be entitled to total incapacity benefits if other factors such as advancing age and generally poor health result in the inability to work.

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