No Apportionment for Prior Injuries, and the Last Responsible Employer

No Apportionment for Prior Injuries, and the Last Responsible Employer

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Injuries, accidents, and disease can occur due to work environments. You could seek apportionment if the prior employer contributed to your employee's injuries. 


Despite this law, a business may not get apportionment for an employee's prior injuries. It can happen if the prior injuries did not play a part in the new injuries that the employee incurs.



What Is Apportionment?



Apportionment is the distribution of liability among various employers or carriers. Apportionment is applicable when the employee has a previous or preexisting injury. It falls on the Workers' Compensation Board to decide whether apportionment applies in a given case based on the facts. Comparing occupational injury and single accident claims reveals differences in handling apportionment.



How Does Apportionment Work?






The claimant's preexisting condition must be considered a disability. This is in compensation for apportionment used in cases of a specific accident. An example is if the claimant stumbled and fractured his ankle on a certain date.


According to Bruno v. Kelly Temp Service, apportionment is inappropriate where the claimant's prior condition was not the result of a compensable injury. It is especially so if the claimant can perform their duties. The claimant's prior condition was not the result of an injury that was eligible for compensation.


It must be possible to compensate the prior ailment for apportionment to apply. It must also be debilitating (not just symptomatic) if it is impossible.






In cases of occupational sickness, the ruling is similar. The claimant should receive compensation from the former employer who caused unsafe exposure. Yet, the employer may blame all former employers whose actions led to the claimant's occupational disease. 


It can happen except for compressed air illness and dust diseases. In such a case, the previous employer is liable. Then, the court will distribute the apportionment according to how long the claimant worked for the specific employer. See Section 44 of the NY WCL.



What Is Needed for This Type of Litigation?



These situations usually involve more litigation. Failing to establish the record properly might expose an employer to needless risk.


So, what should happen to litigate apportionment properly?






First, the board must determine that apportionment is applicable. The claimant must then provide a detailed list of their previous employment.






Additionally, the carrier must establish a record of the claimant's former employment. They can do this by gathering in-depth testimony and requesting all work-related documents. Further, the claimant's employment responsibilities at his previous positions must be documented. This is to establish whether they contributed to the condition.



Medical Proof



All of the claimant's prior medical records should be obtained by the carrier and sent to the IME specialist for evaluation. The carrier must give the IME doctor a list of the applicant's previous employers and job descriptions. To adequately comment on allocation to individual employers, the doctor will need them. A thorough and reliable IME report is essential because the aim is to minimize responsibility.


For more on no apportionment for prior injuries and the last responsible employer, visit Daniel Weltin Law Offices. Our office is in San Leandro, California. Call (510) 319-1904​​​​​​​​​​​​​​ to book an appointment today.

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