Apportionment is simply the allocation of liability between or amongst multiple employers/ carriers. While a worthwhile mechanism for reducing exposure, the issue of apportionment is oftentimes underdeveloped, and therefore appears to not be an effective mechanism. Apportionment applies to cases where a claimant has a prior or preexisting injury, but its applicability in a particular case is a fact determination to be made by the Workers’ Compensation Board. Apportionment in claims established for a specific accident is addressed differently than in claims established for an occupational injury.
For apportionment to be applied in cases established for a specific accident (e.g. claimant tripped and fractured his ankle on a specific date), the claimant’s prior condition must constitute a disability in a compensation sense.” See Krebs v. Town of Ithaca, 293 A.D.2d 883. Now, what exactly does this mean? The Court, in Krebs, noted that “where the prior condition was not the result of a compensable injury and the claimant is able to effectively perform his or her job despite the preexisting condition, apportionment is not warranted.” Id. This was further explained in Bruno v. Kelly Temp Service, wherein the Court explained that “apportionment is not appropriate where the claimant’s prior condition was not the result of a compensable injury and such claimant was fully employed and able to effectively perform his or her duties despite the non-compensable preexisting condition.” 301 A.D.2d 730. Simply put, the prior condition must be compensable (work-related); and, if not compensable, it must be disabling (and not merely symptomatic) in order for apportionment to apply.
In occupational disease cases, the last employer that created an injurious exposure would be the one to compensate the claimant. However, the employer can seek apportionment against all of the prior employers whose conditions contributed to the claimant’s occupational disease (with the exception of silicosis and other dust diseases and compressed air illness, in which case, the last employer is solely liable). The apportionment would then be allocated based on the length of time the claimant worked for each employer. See NY WCL Section 44.
Litigation in these types of cases is generally more extensive, and failure to properly develop the record can lead to an employer being smacked with avoidable liability.
So, what exactly should be done to properly litigate apportionment?
The Board first has to find that apportionment applies. Then, a complete list of all of the claimant’s prior employers must be obtained from the claimant. In many cases, especially those involving claimants who worked in the construction industry, the list of prior employers can be extensive. The list can also be incomplete as the claimant may have worked for several employers for short periods of time, but cannot identify them or provide proof of same. To alleviate this problem, the carrier should subpoena the claimant’s union records, if applicable. The carrier should also develop the record on the claimant’s prior employment – that is, take extensive testimony on employment history, and request tax documents, pay stubs or any other proofs of employment. In addition, the record must be developed with respect to the claimant’s job duties at each of his prior jobs in order to determine whether they even contributed to his condition.
Finally, a medical opinion must be obtained. The carrier should obtain all of the claimant’s prior medicals, and provide same to an IME doctor for review. The carrier should also provide the list of the prior employment, along with the job descriptions (whether written documentation produced by the claimant, or obtained through testimony) to the IME doctor. Without this information, the doctor would not be able to properly comment on apportionment to each employer. As the goal is to ward off as much liability as possible, a detailed and credible IME report is crucial.
While apportionment is applicable only in a small number of cases, it should be approached aggressively to reduce the carrier’s exposure. By doing so, the carrier would have a higher chance of succeeding in apportionment of compensation due to the claimant.