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.

What Is Permanent Disability?

As a business owner, you take every measure possible to reduce the chance of injury to your employees as much as possible.  Unfortunately, no matter how much you strive for an injury-free work place, it is overwhelmingly likely that an injury will eventually occur.  If during the course and scope of employment, your employee sustains an injury, he or she will likely be entitled to receive workers’ compensation benefits.  The type and percentage of disability is a central component of disability claims.

The California Department of Industrial Relations defines permanent disability as “any lasting disability from your work injury or illness that affects your ability to earn a living.”  If an employee is permanently disabled, he or she will be entitled to permanent disability benefits, regardless of whether that injury renders him or her unable to work in the future.  In most cases, permanent disability is determined through Whole Person Impairment (WPI).  This will be determined after the employee is examined by his or her doctor or a Qualified Medical Evaluator.  The doctor or QME will determine the percentage of impairment level, meaning how the injury will impact the employee in his or her ability to work.  The QME will use the standards established by the American Medical Association in making this determination.  The impairment level will then be reduced to a percentage, using a formula which also takes into account the employee’s age and occupation. In cases involving psychological injuries, the injury must either be categorized as catastrophic or the employee must have witnessed a violent crime in the course and scope of employment.  Taking all of these elements into account, the disability evaluator or the judge will then use the statutory formula and decide the amount of permanent disability the employee is entitled to receive.  The amount the employee will be entitled to receive will also be impacted by the date of the injury in addition to the wages paid to the employee before he or she was injured.  The permanent disability benefits typically begin being paid after the end of temporary benefits and the doctor indicates that the injury has “stabilized.”  This means that the injury will not heal or improve any more.

If you have questions about disability payments to your employees, contact us today.  We look forward to discussing workers’ compensation with you and what we can do to help protect you.

What is Permanent Disability?

When an employee sustains a work-related injury, he or she may be entitled to receive payment from his or her employer through the workers’ compensation system.  In California, the workers’ compensation system is a no-fault system.  This means that the employee does not have to prove that the injury was the fault of the employer before being entitled to compensation.  The type, amount, and duration of workers’ compensation benefits that an employee may be entitled to is partly governed by whether the injury results in a permanent disability.

A permanent disability is defined as any lasting disability from an employee’s work-related injury or illness that affects the employee’s ability to earn a living.  In the event an employee sustains a permanent disability, he or she will be entitled to permanent disability benefits even if he or she can return to work.  In order to be determined to have a permanent disability, the employee must submit to a medical examination.  The doctor will decide if the employee has a permanent disability.  The doctor will wait until your injury has stabilized and is not likely to worsen or improve before evaluating the permanent disability.  The term for this state is either “permanent and stationary” or “maximal medical improvement.”  Once the employee’s injury reaches this state, the doctor will send a report to the insurance claim administrator reporting whether the employee has a permanent disability, and whether that disability is, in fact, work-related.  The doctor will decide how much of the permanent disability is attributable to the work-related incident, and how much is attributable to any pre-existing conditions.  The doctor will also write a report about the employee’s impairment, which refers to how much the injury actually affects the day-to-day activities of the employee.  The doctor will assign a number to the impairment, which is then plugged into a special calculation in order to calculate the percentage of disability.   Whole Person Impairment generally means how much the impairment will affect the employee’s ability to function in the future.  The employee’s age and occupation will also affect the calculation, as well as diminished future earning capacity, for injuries incurred after January 1, 2013.  The disability will be stated as a percentage, which will determine a specific dollar amount the employee will receive.  After the amount is calculated, an award of benefits will be granted, but must first be approved by a workers’ compensation judge.

Calculating and awarding permanent disability is complicated, and you need an experienced attorney working with your business through this process.  If one of your employees may be permanent disabled as a result of a work-related injury, contact us today at (714) 516-8188 to discuss it.

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