For several years, the Board has generally refused to consider apportionment during the period of temporary disability, even between two work related injuries. In 2010, the Full Board stated in Byram Hills CSD, 2010 N.Y.Work.Comp. G0070823 (12/31/10) that "there is no basis for apportionment of a temporary disability, and the issue of apportionment should be deferred until a finding of permanency has been made." Since that decision, Board Panels and Law Judges have generally deferred consideration of apportionment until permanency.
In a 3/23/18 decision, Hamburg Central School, 2018 N.Y.Work.Comp. G1342161 (3/23/18), a Board Panel stepped away from this rule, finding that "apportionment does not need to wait for a finding of MMI" between two work related injuries. In that case, the claimant had two compensable right knee injuries. The first one occurred on 3/8/04 and the claimant was eventually awarded a schedule loss of use on that file. His doctor eventually found that he had no impairment and he returned to work full time, full duty.
The claimant suffered a second injury on 10/8/15 and the new carrier argued that the second injury was merely an aggravation of the prior injury and that following a brief period of temporary disability, there should have been a finding of no further causally related disability against the new file. In the alternative, the new carrier argued that apportionment applied and that no more than 10% of liability should be assessed against it. The claimant and the earlier carrier argued that the injury of 10/8/15 was a new injury and that consideration of apportionment was premature until permanency. The Law Judge agreed and assessed awards solely against the new carrier. The Board Panel reversed, noting the power given to it by the Courts to resolve the factual issue of apportionment. It returned the case to the Law Judge for development of the record on the issue of apportionment.
The precedential value of this case is limited because it is a Board Panel decision but it may prove useful for employers and carrier in negotiating or litigating reduced liability through apportionment to an earlier work-related injury.
Congratulations to our partner Melanie Wojcik, who litigated the case before the Law Judge and wrote the successful Application for Board Review. | 
