Giving 110 Percent: Apportionment in Classification Claims

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Workers’ Compensation Law (WCL) Section 15 outlines the schedules of compensation payable to the claimant upon a determination that the claimant is disabled—permanent total, temporary total, permanent partial, and temporary partial. Specifically, WCL Section 15(3)(w) pertains to claims of permanent partial disability that are not amenable to a schedule loss of use or disfigurement findings, commonly referred to as classification cases or LWEC cases.

Beginning in 2007, the legislature amended the WCL as it pertains to classification cases. Previously, upon a finding of permanent disability, a claimant was entitled to a weekly payment for the remainder of his or her life, at a reduced rate based on the level of a claimant’s loss of wage earning capacity. Through the amendment, the legislature mandated a maximum number of weeks of benefits to be paid to a claimant in all claims involving a permanent partial disability.

In the most common scenario, a classified claimant has only one workers’ compensation claim. While there are claimants who have more than one claim, they are not the majority. This is especially so for claimants with classifications—there is a minority of claimants with more than one claim, each of which is established to sites that would warrant a classification.

While it may seem obvious, even though each of these claims can ultimately receive a finding as to the claimant’s loss of wage earning capacity, the loss of wage earning capacity finding in the aggregate cannot be more than 100 percent. The Workers’ Compensation Board made this clear in its Board Panel decision in Employer: Transcare, G0696853, Apr. 30, 2018. That case set forth the proper procedure for a claimant with multiple claims to classifiable sites—namely, a claimant cannot have two independent classifications. This is true whether the two claims involve the same sites (as in Transcare) or where there are multiple different sites (as in Employer: Telesector Resources Group, G0405065, G0824758).

Regardless of whether the sites involved in the two claims overlap, where permanent impairment via an LWEC determination has been found in one case and permanency is being considered in the second case, both cases must be returned to the hearing calendar for a determination on apportionment. The Workers’ Compensation Board will consider the nature and degree of the claimant’s impairment, along with any work restrictions necessary for each case, the claimant’s age and education, the claimant’s language ability, and other relevant factors to determine to what extent the claimant’s disability is resultant from each of his claims. The claimant will then be awarded one finding as to his or her loss of wage earning capacity, up to 100 percent, and the law judge will apportion the percentage between the open claims.

Considering the above, employers should make an effort to determine whether a claimant has a previous classification, or another pending workers’ compensation claim that could ultimately result in a classification, when determining their reserves and potential LWEC exposure. If a claimant has a pre-existing or concurrent claim, it could limit the extent to which such claimant could recover on his or her present claim.

This information could also be a useful tool in pushing for a settlement—if a claimant has already been classified on a pre-cap claim, and a law judge later apportions the claimant’s capped claim at a greater value, the claimant will lose some of the lifelong benefits he had previously enjoyed. A carrier should therefore do a thorough investigation of classification claims with high exposure for settlement and valuation purposes.