Do I Have to Pay for My Worker’s Prior Disability if He Gets Injured? (Apportionment)

As an employer, you know that making sure you provide workers’ compensation benefits for your employees is important and in most circumstances is required by California law.  Workers’ compensation provides protection for the employee because it establishes a no-fault system under which an injured worker can receive compensation for his or her work related injuries.  It also provides protection for the employers, as this no fault system means that the employer does not have to worry about being sued by their employees for recovery for injuries sustained during the course and scope of employment.  Although you certainly understand that workers’ compensation is designed to compensate your injured employee for injuries sustained at your business, it is also important to understand your potential responsibility if the employee had sustained an injury previously at a different business.

Apportionment is designed to allow disability percentages to be assigned to previous injuries to the same body part injured and at issue in the current workers’ compensation case.  California Labor Code § 4664(a) states “The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.”  The law goes on to provide that if there is a pervious determination of permanent disability, then it is presumed that the permanent disability still exists at the time the next workers’ compensation claim is made.  If the request for apportionment is successful, the amount of workers’ disability benefits received by your employee in the current case will be reduced.  To successfully show apportionment, there are specific requirements concerning the doctor’s assessment.  First, a doctor must make a specific determination of apportionment.  This determination must be done using percentages of what existed at the time of the injury.  The doctor must also analyze the permanent disability based on the causation of the disability, not causation of the injury itself.  Third, the opinion must be based on facts and not on speculation.  Fourth, the opinion must be based on a “reasonable medical probability.”  Finally, the doctor must explain how and why he or she reached the particular conclusion.  There are other requirements for a successful claim such as showing the employee was actually compensated for the previous injury and the injury continued to be a source of disability after the accident.

We have extensive experience helping our clients understand apportionment and how to protect their business.  Contact us today for an appointment.

Apportionment and Escobedo

Although employers work diligently to reduce the risk of injury to their employees, injuries are still a reality in the modern workplace. Most of these injuries will not result in a complete and permanent disability to the employee, and so he or she will return to work in some capacity. In some unfortunate circumstances, the employee may later sustain yet another work-related injury. He or she would then begin the workers’ compensation process again for the new injury. With the advent of many modern medical technologies, it has become increasingly possible for medical professionals to determine what portion of the worker’s disability is attributable to the current work-related injury and what portion of the disability is attributable to the prior work-related injury. This process is called “apportionment,” and is a major source of litigation in the workers’ compensation field. In 2005, the Workers’ Compensation Appeals Board issued an opinion in a case called Escobedo v. Marshalls which provides guidance on how to apply apportionment statutes found in Labor Code section 4663.
In that case, the plaintiff sustained an injury to her left knee while working at a Marshalls clothing store. The plaintiff also developed problems in that knee as a result. Although the plaintiff did not have knee problems before the injury, her doctor had diagnosed her with arthritis about ten years before the injury. The plaintiff also developed some problems in her right knee, which a QME determined was a direct result of the injury to her left knee. The doctor determined that 50% of her disability was caused by the plaintiff’s pre-existing arthritis. The WCAB pointed out that the plaintiff has the burden at trial to prove the percentage of permanent disability directly caused by the work-related injury, while it is the employer’s burden to prove the percentage of disability caused by other factors. The court also went on to state that even if a medical report addresses the issue of causation and does make an apportionment determination, it still has to constitute substantial evidence if it is to be relied upon in making that determination. “Substantial medical evidence” means that the doctor’s opinion must:
1. Be within reasonable medical probability;
2. Not be speculative;
3. Be based in relevant facts;
4. Be based on an adequate patient history and examination; and
5. Include the reasoning in support of the doctor’s apportionment conclusion.
Since this opinion was entered, there have been many other cases discussing apportionment and the impact of the holding in Escobedo. We have experience in helping our clients understand their responsibilities and rights when it comes to apportionment of an employee’s work-related injury. Call us today at (714) 516-8188 to talk about your business.

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