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Wednesday, January 22, 2014

Apportioning liability for workers’ compensation benefits among the claimant’s various employers


Apportioning liability for workers’ compensation benefits among the claimant’s various employers
2013 NY Slip Op 07244, Appellate Division, Third Department

In some situations it becomes necessary for the Workers’ Compensation Board to consider the issue of apportionment of liability among a claimant's prior employers in accordance with Workers' Compensation Law §44.*.

The employee [Employee] began working for the Town in 2002. Prior to that, she had performed secretarial services for various employers, since 1966. In 2004 Employee sought medical treatment, complaining of pain in her hands and a weak grip, and she was diagnosed with carpal tunnel syndrome.

In 2007, Employee filed a claim for workers' compensation benefits. Her claim was initially established as an occupational disease of the left wrist, with a date of disablement of October 1, 2007 and was subsequently amended to include bilateral elbows and right carpal tunnel syndrome.

Employee was awarded a 25% schedule loss of use of the left hand in 2010 and the Town workers' compensation carrier sought apportionment of responsibility for liability of the claim with claimant's two most recent prior employers, covering the years between 1987 and 2002.

A Workers' Compensation Law Judge denied the carrier's request, finding no medical evidence that Employee had contracted her condition during her prior employment, and the Workers' Compensation Board affirmed upon administrative review. The Town and its carrier appealed.

The Appellate Division sustained the Board ruling, explaining that "In determining whether a claim should be apportioned between previous employers in the same field, the relevant focus is whether the claimant 'contracted an occupational disease while employed by that employer.'"

In support of the Board’s determination, the court said that Employee had testified that she had experienced some symptoms of pain in her wrists during her previous employments. but did not seek or receive medical treatment for her condition until 2004. Although an independent medical examiner opined that "there appears to be a cause for apportionment" and recommended that the claim should be apportioned 75% to the Town and 25% to Employee's previous employers, the medical examiner [1] “did not opine as to when [Employee] contracted her condition” and [2] “offered no objective medical proof in support of his findings.”

* §44. Liability of employer. The total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted. If, however, such disease, except silicosis or other dust disease and compressed air illness or its sequelae [sic - any abnormal condition that follows], was contracted while such employee was in the employment of a prior employer, the employer who is made liable for the total compensation as provided by this section, may appeal to the board for an apportionment of such compensation among the several employers who since the contraction of such disease shall have employed such employee in the employment to the nature of which the disease was due. Such apportionment shall be proportioned to the time such employee was employed in the service of such employers, and shall be determined only after a hearing, notice of the time and place of which shall have been given to every employer alleged to be liable for any portion of such compensation. If the board finds that any portion of such compensation is payable by an employer prior to the employer who is made liable for the total compensation as provided by this section, it shall make an award accordingly in favor of the last employer, and such award may be enforced in the same manner as an award for compensation. 

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_07244.htm

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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