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Apply Apportionment to Reduce Exposure in New York

Apportionment is allowed under the Workers’ Compensation Law Section 44 to ensure that compensation is proportionally awarded to the amount of causal contribution made by the employer. This is intended to prevent windfalls to employers and can be applied to both permanent partial disability awards (“PPD”) or loss of use (Scheduled Loss of Use awards). In general, and despite the clear statutory authority, it remains challenging to secure apportionment to non work-related disability except for scheduled loss of use.

For the defense, apportionment should be considered where it can result in a lower wage (and lower benefit rate), where a statute of limitation defense becomes available, and where this is successive or prior coverage to which liability can be ascribed.

Concurrent and Successive Disabilities

For distinct injuries which occurred at the same time, with one causing a greater disability, apportionment of both temporary and permanent disability awards is allowed. For successive injuries, in which there are separate and distinct injuries with separate periods of disability, permanency is apportioned between the injuries. Temporary disability is not, presumably because the lost time for each successive loss was compensated in accordance with the employer/carrier liable at the time of each successive loss.

Occupational Diseases and Accidents Treated Differently

Occupational diseases and accidental injury losses are treated differently for apportionment under the Workers’ Compensation Law.

Occupational Diseases Subject to Apportionment

The Workers’ Compensation Law helpfully provides a listing of all “occupational diseases” (providing 29 conditions and illnesses) and then, in its inimitable manner, provides a catch-all description stating that the definition of occupational disease is “any and all occupational diseases.” WCL 3(2). Case law is thankfully more useful in providing a definition, instructing that an “occupational disease” is an ailment which is the result of a distinctive feature of the kind of work performed by claimant and others similarly employed, and it is not an ailment caused by the peculiar place in which particular claimant happens to work, nor is it caused by ordinary contact with a fellow employee. Paider v. Park East Movers, 19 N.Y.2d 3723, Krauss v. Marcel Wagner Glove Co., 32 A.D.2d 600. The test of what is an “occupational disease” is the same whether employee is decrepit or in normal health; there must be some recognizable link between disease and some distinctive feature of claimant’s job. Detenbeck v. General Motors Corporation, 1956, 309 N.Y. 558, 132 N.E.2d 840. See also my Chapter 12 in Lois’ Handbook.

To be liable for an occupational disease three factors must be considered: (1) the nature of the disease or condition; (2) what kind of work caused the disease; and (3) who was the last employer for whom the claimant did that kind of work. The Law Judge must then determine the date of disablement, the date of contracture, an the period of time each employer (potentially liable and in the same line of work or occupation) that the claimant worked.

 Occupational Disease Not Subject to Apportionment

Because Section 3(2) contains the catchall, it is more useful to look at the instances where apportionment does not apply. WCL Section 44 applies to all occupational diseases claims except

  • Dust diseases. WCL 44-a.
  • Loss of Hearing. WCL 49-bb. There is a loophole as Section 49-ee provides that apportionment is available of the last employer gives statutory notice of a potential claim to all prior employers. Loss of hearing claims also bear the requirement that at least three months must elapse from cessation of noise exposure before the claim can be brought, and so the statute of limitation in a loss of hearing case is two years plus three months.

Important Dates in Occupational Disease Apportionment

[1] Disablement

“Disablement” refers to the first date that the claimant could not work due to the alleged occupational disease. Interestingly, this can be the first date of medical care for the condition (Winn v. Hudson Val. Equine Cntr., 215 A.D.2d 920 (3d Dep’t 1995), when the claimant first began losing time (Glasheen v. N.Y.S., 239 A.D.2d 792 (3d Dep’t 1997), or at any time “as the Board may determine.” (Bishop v. St. Joe Minerals, 151 A.D.2d 917 (3d Dep’t 1989), leave den. 75 N.Y.2d 709 (1990).

[2] Contraction

The date of contracture is generally the time when the claimant first had complaints regarding the condition or sought medical care. This is contrasted with disablement which generally refers to actually missing work. The date of contracture is not relevant in dust disease claims.

[3] Last Injurious Exposure

This is also relevant in dust disease claims. In dust disease claims the liable employer/carrier is the employer or carrier on the risk at the time of the last injurious exposure, and not the date of disablement. Apportionment is not permitted. WCL Section 44-a.

Getting Apportionment in an Occupational Exposure Case

The liable employer is the last employer who employed the claimant in the employment to which the disease was due. WCL Section 44. The last employer must secure a medical opinion regarding apportionment and then apply to the Board for apportionment. The Board will generally find apportionment based upon the period of time.

What About Aggravation of a Pre-Existing Condition?

Because compensation is not due for an active pre-existing condition, apportionment would not apply. Perez v. Pearl-Wick Corp., 56 A.D.2d 239 (3d Dep’t 1977). However, where the prior condition or illness was dormant and not disabling, and some feature or exposure in the workplace led to the condition flaring, worsening, or becoming debilitating, then both that exposure could be compensable and therefore subject to apportionment. Hollander v. Valor Clothiers, Inc., 91 A.D.2d 731 (3d Dep’t 1982).

Apportionment in Traumatic or Accidental Injuries

Apportionment is available in specific loss or traumatic injury contexts. However, sloppy case law has led to disfavoring apportionment to non work-related injuries, conditions, or disability. The Workers’ Compensation Law itself does not define “previous disability” except to state that “an employee who is suffering from a previous disability shall not receive compensation for a later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with the previous disability.” WCL 15(7). This means that when multiple accidents result in a cumulative disability, the employer should get apportionment to the amount of pre-existing disability.

[1] Prior Work-Related Disability.

Apportionment for prior work-related disability is not automatic and demonstrates the utility of obtaining a completed (and signed) Employee Claim Form (C-3) describing prior injuries to the same body part as well as a claims history search report (Claims Index Bureau Report). If there has been a prior Section 32 (lump sum settlement), Schedule Loss of Use or Loss of Wage Earning Capacity award the employer should be seeking apportionment to the prior disability.  The Law Judge must be provided with medical evidence to make this ruling. McCloskey v. Marriott Corp., 290 A.D.2d 671 (3d Dep’t 2002). The Board will consider workers’ compensation claims in other states for apportionment. In addition, workers’ compensation claims that could have been brought in New York (or pursued to award) but were abandoned by the claimant can be grounds for apportionment!

[2] Prior Non Work-Related Disability.

Here the courts have created a nonsensical standard that makes finding prior disability where there has been no worker’s compensation award or settlement difficult. The case law holds that the claimant must be shown to have “a disability in compensation sense” which means the prior non work-related condition must have been both symptomatic and disabling at the time of the new injury. This has been interpreted to mean that if the claimant was able to function, even in a restricted fashion, in a job environment prior to the work accident, then no apportionment will be allowed. Case law on this is legion. Krebs v. Town of Ithaca, 293 A.D.2d 883 (3d Dep’t 2002), leave den., 100 N.Y.2d 501 (2003).

Apportionment in Death Claims

While apportionment is not allowed to non work-related conditions (Hronich v. Consol. Edison Co., 21 N.Y.3d 636 (2013)), apportionment to work-related disability is allowed. Reagin v. Collins, 52 A.D.2d 1010 (3d Dep’t 1976).

Apportionment in Scheduled Loss of Use Claims

In a Scheduled Loss of Use Claim the liable employer is the employer or carrier on the risk on the date of accident or date of disablement. That employer or carrier can then seek apportionment for any prior work or non work-related injury if that injury would have resulted in a scheduled loss of use award. Where there was a prior workers’ compensation accident the Board will generally allow apportionment, even where the apportionment is based solely on the IME report in the later case. Ferrari v. Lay, 164 A.D.3d 1507 (3d Dept. 2018). The employer is generally entitled to full credit against all prior schedule loss of use awards involving the same body part, which is advantageous to the employer because multiple body parts are covered under the general terms like “leg” or “arm” in the scheduled loss of use statute. See WCL 15(3) and Genduso v. New York City Dept. of Educ., 164 A.D. 3d 1509 (3d Dept. 2018). It does not matter that the claimant was working full time and full duty without restrictions at the time of the work accident. Scally v. Ravena Coeymans Selkirk Cent. School. Dist., 31 A.D.2d 836 (3d Dept. 2006). In general the Board will not provide apportionment for sprain or degenerative conditions (like arthritis) but only to specific traumatic losses (whether work related or not). Levistsky v. Garden Time, Inc., 126 A.D.3d 1264 (3d Dept. 2015) and Hogan v. Hilltop Manor of Nisayuna, 303 A.D.2d 822 (3d Dept. 2003). In a scheduled loss of use claim apportionment will apply where the claimant underwent prior surgery to the same body part and the employer produces medical showing same. Wilcox v. Niagara Mohawk Power Corp., 69 A.D.3d 1264 (3d Dept. 2010).

Apportionment Does Not Apply to Medical Care

Medical care (and costs) are not apportioned. Peterson v. Faculty Student Assoc., 57 A.D.3d 1139 (3d Dept. 2008).


Contact Greg Lois with any apportionment questions you have regarding your New York workers’ compensation claims.

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