PRACTICE TIP:  Under compelling circumstances, an apportionment can be implemented with regard to medical and indemnity treatment prior to a finding of MMI/permanency.


In the Full Board Panel Decision of Robert Macvie Inc., WCB G2036125 (8/11/20), the NYS WCB considered whether apportionment is appropriate prior to a finding of permanency.  In Macvie, the claimant had two prior work injuries for which he underwent low back surgery after each and entered into Section 32 settlement agreements after each.  The carrier secured a medical report apportioning the claimant’s condition to the two prior work injuries with no apportionment to the subsequent work injury. 


The Full Board held that apportionment of liability prior to a finding of permanency may be considered “in a compelling case such as this” and further noted that “any finding of apportionment is a factual question for the Board to determine based upon the credible medical evidence in the record.”  Ultimately, the Full Board returned the case to the trial calendar for the claimant to produce medical evidence of apportionment with the parties granted an opportunity to depose the physicians on the issue of apportionment prior to permanency.  The Board further instructed that the fact that the claimant was working full duty prior to his most recent injury “does not preclude a finding of apportionment as a matter of law.”  However, the Board also noted that the claimant’s full duty work status “is certainly relevant with respect to whether the various apportionment opinions are credible” and strongly hinted that the IME opinion of no apportionment to the claimant’s most recent work injury might not be credible. 


Prompt investigation of any prior work injuries is necessary to pursue an apportionment prior to a finding of permanency.  Carriers should secure apportionment opinions based upon review of complete medical records including records of prior treatment/surgery.  Moreover, the existence of PPD findings and/or continuing disability/treatment will greatly assist in securing an apportionment prior to a finding of permanency.


If you have any questions about this or any other issue, contact David L. Niefer at or (607) 723-0600 or any of the attorneys in our office.  If you would like a training session on this or any area of the Workers’ Compensation Law, please do not hesitate to contact our firm.


This information is provided for general guidance only.  This information should not be used as a substitute for consultation with legal counsel.  Each case presents unique facts requiring individual analysis.