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Court of Appeal Issues (Unpublished) Opinion on Apportionment

July 17th, 2013

Good news and bad, dear readers.  So the good news is that the Court of Appeal recently issued a new opinion with respect to apportionment, reversing the Workers’ Compensation Judge and the Workers’ Compensation Appeals Board, and finding that when an AME says there’s apportionment, the vocational rehabilitation expert’s opinions take a back seat.

Unfortunately, the opinion is Unpublished, so don’t mention it before any Judge unless you want to get sanctioned!

So here’s the deal, in the case of ACME Steel v. Workers’ Compensation Appeals Board (Michael Borman), the Court of Appeal reviewed an award of total permanent disability, after the workers’ compensation Judge found that the vocational rehabilitation expert’s opinion that applicant was completely precluded from finding a job in the open labor market because of his near total hearing loss.

So, was ACME Steel’s insurer going to have to pay out 2/3rd of applicant’s average weekly wages for the rest of his life?  What could ACME possibly offer in its defense?

Well, the Agreed Medical Evaluator found that 40% of the permanent disability should be apportioned to non-industrial causes.  Additionally, applicant had sustained a prior industrial injury (coincidentally in the form of hearing loss), and was awarded 22% disability.

The WCJ reasoned that there was no earnings loss due to the prior award, so no apportionment was implicated, and she could rely on the vocational rehabilitation expert’s opinion that applicant was totally permanently disabled.

On review, the Court of Appeal ruled that the Workers’ Compensation Judge “erred, however, by failing to address the issue of apportionment.”  Specifically, the Court of Appeal held that the reforms of SB-899 showed the clear intent of the Legislature to “charge employers only with that percentage of permanent disability directly caused by the current industrial injury.” (Brodie)

So, dear readers, apportionment is alive and well, if only spoken of in hushed and unpublished whispers.

On the bright side, no one likes being reversed, so perhaps the Commissioners and the Workers’ Compensation Judges will keep this opinion in mind when applicants’ attorneys ask them to ignore the law.  On the other hand, ACME had to shell out the dollars for not one level of appeal, but two.

So good news and bad, dear readers, good news and bad.

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