The issue of apportionment is confusing.  Many attorneys apply the wrong standard, the wrong timing, or both which can lead to a hodgepodge of contradicting decisions by Judge’s and also sometimes by the Board.

One type of apportionment is “legal apportionment.”  Legal apportionment is a principle that may apply when the claimant has a preexisting injury that was <em>not</em> the subject of a NYS Workers’ Compensation injury.  Unlike apportionment between two NYS Workers’ Compensation claims, legal apportionment generally only applies at permanency.  To demonstrate legal apportionment, the previous condition has to contribute to the disability and must be “disabling in a compensation sense.”  For many claimants and sometimes Judges, the fact that the claimant was working without restrictions at the time of injury is <em>the</em> dispositive factor.  That fact, of course, makes it extremely difficult to obtain legal apportionment.  People need to be working to have an injury at all, and unless the claimant was hired under a list of restrictions or working light duty, the issue of ongoing restrictions is usually just based on their testimony.  There are seldom stories of victory on these files, and more often than not they are the ones that leave the sourest of tastes because it is a loophole that can lead to abuse of the system.

It was undisputed that the claimant in this victory was working without restrictions at the time of her injury.  She had to pass a physical demonstrating she was able to perform the job prior to being hired.  She was injured on her third day, the first day any physical work was required.  At that time, she was not injured enough to stop working, and only sought some treatment.

The claimant eventually went out of work.  After a hard-litigated controversy the claim was established but she was found unattached.  She was required to demonstrate attachment, and in that attempt she produced a resume and gave testimony regarding her prior application for Social Security Disability.  The claimant testified she stopped working after her MVA and did not work again for five years until she started this new job.

The claimant’s treating doctor opined that there was no apportionment.  He felt that the claimant’s MVA five years before this instant injury was too far removed in time.  Furthermore, the claimant indicated she did not have ongoing treatment at the time of her Workers’ Compensation injury and was completely healed.  He indicated it was not relevant to her current disability.

We obtained the medical records.  The medical records clearly demonstrated no ongoing history of treatment due to the earlier MVA.  We did not however, leave it at that.

We also obtained the claimant’s pleadings in her lawsuit for the MVA, where she opined a permanent and severe disability to her sites of injury.

We also obtained the claimant’s insurance claim history.  From that we were able to determine that the claimant had over a dozen lawsuits due to injuries in the past few years.  Our site of injury was not directly implicated, but it was still not a good look.

In a strange reversal, we argued that the standard was not whether the claimant’s condition was active and symptomatic.  All evidence indicated it was not.  We argued that the standard was whether the claimant was disabled in a compensation sense.  We used all of her prior attachment testimony against her to demonstrate that she was disabled in a compensation sense based on the totality of the evidence.  The WCLJ found that 50% of the claim was unrelated.

The shocked claimant’s counsel filed an appeal, but the Board upheld the decision of the WCLJ noting that the treating doctor’s information from the claimant directly contradicted the facts in evidence that the claimant used in order to reattach.  They upheld the 50% apportionment noting that the claimant left work due to her 2014 MVA, did not return for years, and only worked for a couple of days prior to her new accident.  They also made note of the claimant’s lengthy history of lawsuits and her prior filings.  They agreed that apportionment applied as a matter of law based on the totality of the record and the story we told.

As an added bonus, we also obtained a 65% LWEC, which was fairly low giving the mitigating factors on this file.