- The GENERAL rule is that you don’t apportion a New York comp claim with prior injuries. (It is the “You take them as you find them” Rule.)
- The “general rule”, however, has quite a few exceptions.
- First exception: A prior condition or accident which has progressively worsened and is causing all or part of the reduced earning after an accident may be apportioned. Example: degenerative joint conditions.
- Second exception: Prior New York comp claims. Two, or more, NY comp claims may be apportioned. What about a NY comp claim and an out of state comp claim? Amazingly, although this must occur thousands of time every year, there is no case law on it and nothing in the statute. Best guess: If the out of state claim can be reopened it is just possible that under some circumstances apportionment could be achieved.
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- Third exception: New accidents or conditions AFTER the accident which cause wage loss. There is much more flexibility than with prior accidents and conditions. Almost anything AFTER the accident which causes wage loss can be apportioned. Again, there are almost no cases on this. Why? The carriers seldom investigate for accidents and illnesses which occur well after a comp claim, although it is wise and advisable to do so.
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- Third exception: New accidents or conditions AFTER the accident which cause wage loss. There is much more flexibility than with prior accidents and conditions. Almost anything AFTER the accident which causes wage loss can be apportioned. Again, there are almost no cases on this. Why? The carriers seldom investigate for accidents and illnesses which occur well after a comp claim, although it is wise and advisable to do so.
- Fourth exception: Second Injury Fund. It is not generally known that all WCL 15-8(d) (second-injury fund) is an apportionment. When the law was first passed in 1943, during WWII, there was, initially, only apportionment. The judge had to decide how much of a disability (wage loss) was due to the prior condition.
That, very quickly, led to an explosion of trials and appeals, placing an impossible burden on the Board (then called the “Industrial Commission”, until 7/1/47).
The solution was a mandatory apportionment on all 15-8(d) by requiring the carrier to pay the first 260 weeks of disability and the Fund paying everything after. (It was very quickly forgotten that the deductible weeks were actually an apportionment.)
That was amended to 104 weeks a few years later and remained so until the end of the 1990s when it again was raised to 260 weeks until new second-injury fund claims were halted on 7/1/07.
In the 1980s, a bizarre twist was added. A comp judge, as unfamiliar with the history of the law as the lawyers appearing before him, began to allow informal apportionment of the claim between the carrier and the Fund, unaware that the deductible weeks were ALREADY the statutory apportionment. The state later put these “apportionments” into the law, thus creating apportioned apportionments!
Conclusion: Although the general rule is that you can’t apportion comp disability, on nearly every serious claim there is at least one opportunity for apportionment. Serious claims are most likely to happen to older workers, who have, statistically, far more unrelated conditions.
With the abolition of second-injury funds claims in NY, the Board will revert to the 1943 model and there will be trials and appeals on all serious claims in efforts to obtain some apportionment.
NOTE TO EMPLOYERS: ALWAYS inform carriers of all known prior and subsequent accidents, claims and conditions!
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, New York. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans, and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100.
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