Apportionment refers to the legal concept that if a claimant has more than one injury that stemmed from more than one accident, an insurance carrier has a legal remedy to try and split the responsibility of compensation between the two accidents. More often than not, those two injuries happened within different cover periods for different carriers. The degree of liability that would be split depends on medical evidence and testimony which would ultimately decide to what extent each injury is responsible for the overall level of disability. Indeed, when both of the claimant’s injuries are due to work related accidents, apportionment can be found if it is supported by medical evidence. When the prior condition is the result of a compensable work-related injury, apportionment is simply a factual issue for the Board to determine based on the medical evidence in the record. That evidence usually consists of medical records obtained through subpoenas, physician reports and testimony.
Adding another layer to apportionment litigation is the deference given by the New York Workers’ Compensation Board to Law Judges when making a legal determination on apportionment. Judges, like most of us, do not have medical training and must make a rational decision based on the evidence presented. The Board can find one doctor more credible than another on the issue of apportionment. The Board can take into consideration a number of factors such as previous positive findings on diagnostic studies and the number of times a claimant has been seen by a particular doctor. It will be crucial for your defense attorney to bring every argument to the table to try and convince the Law Judge that his/her IME doctor should be found to be more credible.
In the context of NY Workers’ Compensation, the issue of apportionment is raised fairly often as a defense against future exposure. However, it is sometimes unclear under which circumstances this defense can be properly pursued by an employer or carrier. Some situations are clear cut and can be raised in front of a Law Judge for adjudication. In other instances, your attorneys may have to fight an uphill battle to try and convince a Judge that your apportionment argument is meritorious. If you are unsure of whether apportionment would apply in your case, feel free to reach out to our office and request a telephone review or discussion of the pertinent medical records.
There are many factors to consider when determining whether apportionment applies to a Workers’ Compensation claim. Please contact Steven Bedoya at sbedoya@bhlfirm.com or (201) 880-9374 for more information.