The Appellate Division, noting that "[as] a general rule, apportionment is not applicable as a matter of law where the preexisting condition was not the result of a compensable injury and the claimant was able to effectively perform his or her job duties at the time of the work-related accident despite the preexisting condition," indicated that a limited exception to this general rule exists.
In the words of the court, "apportionment may be applicable in a schedule loss of use [SLU] case "if the medical evidence establishes that the claimant's prior injury - had it been compensable - would have resulted in an SLU finding."
In the absence of a medical opinion that the claimant's injury would have resulted in an SLU award if it had been compensable, the Appellate Division declined to disturb the Workers' Compensation Board's determination "that there is insufficient evidence to conclude that apportionment was appropriate" under the relevant circumstances with respect to the instant applicant's claim.
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