Can I Apportion to that Prior Injury/Condition?
Apportionment is an excellent mitigation strategy for carriers/employers. There are a couple of different scenarios to review when addressing apportionment; however, the threshold issue is permanency. Generally speaking, New York State Workers’ Compensation Law does not permit apportionment prior to permanency.
The most common form of apportionment involves a prior compensable event. Under this scenario, there is no requirement that the carrier/employer prove an “active and symptomatic condition” at the time of the new/later injury. Addressing apportionment to a prior compensable condition involves: (1) knowledge of the prior claim; (2) copies of the prior Workers Compensation Board file; (3) review by an IME; and, (4) an IME-4 report providing a specific opinion on apportionment to the prior compensation date of accident(s)/condition(s).
If the prior injury/condition involves a non-compensable and non-schedule impairment, legal apportionment is trickier. Under these facts, the carrier/employer must prove, through appropriate medical records, that the prior injury/condition was “active and symptomatic” and/or “disabling in a compensation sense” at the time of the compensable event. This is a typically a factual question which the Board will resolve through both lay witness and medical testimony.
If the prior injury/condition involves a scheduled loss of use condition, the carrier would need an IME to comment on the following: (1) would the prior injury have resulted in permanency and (2) what the percentage permanency would be using the current New York State Impairment Guidelines. If the prior injury would have resulted in permanency, the carrier/employer would, in theory, have a credit on the prior scheduled loss of use.
Regardless of the scenario, the best outcomes are achieved with prompt investigation of conditions listed on claimant’s C-3 claim form, initial medical reports, and by securing necessary HIPAA and/or OC-110(a) documents as quickly as possible early in the claim.