Apportioning Liability between successive employers.
New York allows for the apportionment of liability for payment of any award among several employers. WCL § 44. Successive insurance companies have the same liability as successive employers; the one “last on the risk” pays the award and then seeks apportionment from the prior carriers. The last employer pays the entire award to the claimant. Then, that last employer can seek apportionment against the claimant’s prior employers (who exposed the claimant to the same condition leading to the occupational disease).
Enabling this apportionment, the claimant must provide the last employer with the names and addresses of all his prior employers; the failure to provide those prior employer’s contact information may result in the claimant being stripped of all compensation until he complies with the request. WCL § 46.
When both of the claimant’s injuries are due to work-related accidents, apportionment can be found if it is supported by medical evidence. Matter of McCloskey v. Marriott Corp., 290 AD2d 671 (2002). When the prior condition is the result of a compensable work-related injury, apportionment is simply a factual issue for the Board to determine based by the medical evidence in the record. Id., and Matter of Huss v. Tops Mkts., 13 AD 768 (2004).
The Board can find one doctor more credible than another on the issue of “how much apportionment” is ude to each sucessive accident where one doctor examined the claimant multiple times. Further, where a doctor changes his opinion on apportionemnt without reviewing addiitonal medical information (for example, addiitonal interim records) that medical opinion can be discounted by the fact finder. See Matter of Fashion Marketing Inc., 113 NYWCLR 166 (September 12, 2013).