The Illusion of "Apportionment"

Posted By Thomas F. Martin, PLC || 28-Oct-2015

On Friday, October 23, 2015, I was invited by the California Applicants' Attorney's Association (CAAA) to speak to almost 200 workers’ compensation attorneys and professionals about the concept of "apportionment."

Here is a quick recap of what I covered.

"Apportionment" is a legal technique used by claims administrators to reduce the amount of permanent disability an injured worker is entitled to by blaming other factors for the permanent disability due to a work injury.

For example, the employer will blame "degenerative changes" found by an x-ray or MRI after a work injury, and argue that those changes "caused" all or part of the permanent disability. Although this tactic is often used, in practice it is legally quite difficult for claims administrators to prove.

In the landmark case of Escobedo vs Marshalls 70 Cal. Comp. Cases 604 (2005), the Workers’ Compensation Appeals Board outlined the requirements the defendant must meet to establish valid apportionment to factors other than the work injury.

Generally, these conditions are:

  1. The defendant must prove that factors other than the work injury—for example, degenerative changes—caused the current level of permanent disability;
  2. The defendant must prove the exact nature of the apportionment;
  3. The defendant must prove that the apportionment is based on facts that are relevant after an appropriate exam and historical information;
  4. The defendant must prove it is more likely than not (over 50% likely) that the apportionment determination is reasonable;
  5. The defendant is required to produce evidence of a percentage of apportionment; and
  6. The defendant must produce evidence that explains "how and why" there is apportionment.

The point here—the same point I made in the seminar—is it isn't easy for the claims administrator to prove legal apportionment. As representatives for injured workers, we should make sure standards for apportionment are actually met.

Otherwise, apportionment is just an illusion.

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The seminar discussed above is available for purchase from CAAA.org

Categories: Workers Compensation
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