- As you know, in early 1997, we optimistically reported the case of Miller v. Congel-Palenscar, Inc. (App. Div. 3d Dept.). Succinctly, it resurrected and invigorated the issue of apportionment in workers' compensation claims which had been seriously eroded (if not obliterated) after the case of DiFabio v. Albany County Dept. of Social Services (162 A.D.2d 775). However, on December 19, 1997, the same Court revisited the apportionment issue. We have the unpublished and uncorrected version which may be subject to change pending the final published version. Holding in Adam Peziol v. V.A.W. of America, Case No. 79559, the Court reasoned that a claimant reasoned that a claimant who had been employed for two years under a 20-lb. restriction due to a severe arthritic spinal condition, and who sustained a subsequent compensable back injury rendering him totally disabled, is not necessarily subject to apportionment. The Court relied upon the evidence in the record that the claimant was able to perform his duties until the compensable injury, and that "he was not under constant medical care" for the pre-existing condition. It further concluded that "Inasmuch as [the] claimant was able to effectively perform his job despite his non-compensable pre-existing back condition, apportionment does not apply." (Citing Williams v. Boll, 184 A.D.2d 881; Matter of DiFabio v. Albany County Dept. of Social Services, 162 A.D.2d 775).
- This case is not a total reversal of the existing favorable decisional law, but does utilize overly broad language to address the issue of apportionment. It does not mean that apportionment is "dead." Often, these cases are fact-specific. Thus, if the Board decides against apportionment as a question of fact, and there is substantial evidence in the record to support that conclusion, the Court will not disturb it (relying upon Section 20 of the Workers' Compensation Law which empowers the Board to decide all questions of fact and mixed questions of fact and law). In this case, the Court recited that the lack of active medical care and the fact that the claimant "effectively performed his job" supports the Board's factual decision that there is no apportionment despite the obvious record of a pre-existing severe arthritic disability.
- What does this mean to the defense of your cases? It means that the issue of apportionment is a factual issue, and the record must be properly developed. The record must establish facts which would support the legal determination of apportionment. For example, evidence of regular or current treatment for the pre-existing disability may be an important fact on this issue. Further, the record should contain evidence that the pre-existing disability affects the claimant's job performance. Finally, and conclu-sively, there must be medical evidence of apportionment. The Miller case stands for the principle that the Board cannot substitute its judgment for uncontradicted evidence in the record. Thus, if there is evidence of apportionment in the record, it may be relied upon by the Board, and will survive an appeal as a question of fact. Conversely, if there is evidence of "no disability in the compensation sense," prior to the compensable injury, the Board can ignore even obvious pre-existing disabilities and find no apportionment. Hint: It is often extremely valuable to solicit an opinion of apportionment from an attending physician before the case becomes contentious, or enters litigation. As always, an attending physician's opinion of apportionment is extremely persuasive, and when read in combination with a carrier's consultant's opinion, may be determinative on the issue.
- As always, our office is available to assist you in these legally challenging areas. Should you have any questions, please feel free to contact our office.
Is Apportionment Dead?
This article was edited and reviewed by FindLaw Attorney Writers | Last reviewed March 26, 2008
This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw’s team of legal writers and attorneys and in accordance with our editorial standards.
The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area.
Was this helpful?