LOIS Partner Meisha Powell, with the help of Paralegal Karen Olarte, significantly reduced the client’s exposure by successfully utilizing arguments under WCL 15(3)(w) and Medical Apportionment for an ongoing New York Workers’ Compensation claim. The case involved several years of litigation and started with the Claimant’s allegation that he injured his back while working for Powell’s insured from merely pressing down on a clutch while operating a truck. Notably, the Claimant had a long history of work-related accidents: He underwent a back fusion surgery following a 1994 work accident and was recommended for another back surgery following a 2003 accident where he fell through a roof on a construction site. In those cases, the Board Panel found not only that they were inactive, but also legally closed under WCL Section 123, and that no indemnity awards (i.e., lost wages) could be directed. Throughout the tenure of this case, Powell and her team tried to settle this matter, but after settlement talks fell apart, Attorney Powell forged ahead to apportion liability to the closed files.
When Powell first raised the apportionment defense, the other Carriers to whom she would be passing liability to and the Claimant’s counsel argued that the defense did not apply. They all argued that the Claimant returned to work full-time and at full duty for Powell’s insured. Shockingly, two Judges also agreed that apportionment would not apply. After each decision at the trial level that apportionment would not apply, Powell and her team appealed, which resulted in the Board Panel reversing the Judges’ decisions and directing further development of the record. Finally, and after a fully developed record, including numerous depositions, Powell successfully argued that apportionment actually did apply.
To prove that apportionment was applicable to this 2018 claim, Attorney Powell utilized the medical opinions of the doctors to bolster her case for apportionment. She first argued that all the doctors agreed that there was some sort of apportionment for this claim to the prior accidents. Second, during her summations, she argued that her insured was liable for this claim due to an accident where the Claimant merely pushed down on a clutch and suffered injury to his back, where he was found to have an 85% loss wage-earning capacity (LWEC). Additionally, she argued that the mechanism of injury for this claim most likely would not have led to a LWEC at 85% and is likely due to the Claimant’s pre-existing injuries. Powell argued, “Apportionment and logic must apply here.”
The Law Judge agreed. He found that apportionment applied, resulting in a large credit and reimbursement to the Carrier, since payments have been made. Notably, the Law Judge apportioned part of the liability to one of the closed files, which therefore results in an overpayment to the Claimant. To make matters even more favorable for the client, Powell also successfully argued for a credit to the Carrier under Workers’ Compensation Law Section 15(3)(w). This winning argument, which was upheld on appeal, reduced the Carrier’s exposure significantly. This successful outcome was due to aggressive advocacy, as Powell and her team adhered to the Firm’s standards in full service to their client, using creativity and zeal.
