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50% Apportionment Upheld by WCAB

50% Apportionment Upheld by WCAB

By Karen Course, Esq.

RTGR Law recently had a case come to Trial where the central issue was apportionment. The applicant had an injury in 2000 to the same body parts for which she had received a significant award and for which she continued to treat for about five years. While working for our employer, she re-injured those same body parts. The applicant was seen by a panel QME who reported 50% apportionment to her prior injuries. The WCJ, focusing only on the two paragraphs discussing apportionment, concluded that the apportionment did not meet the standards under Escobedo and found no apportionment.

On Reconsideration, we argued that the report must be considered in its totality, noting the applicant gave a truthful history both in deposition and to the doctor, the limited medical records that were available showed the prior injury, and that the PQME was skilled in evaluating workers compensation cases and his judgment must be considered. The WCAB agreed and reversed the Trial Judge, finding full apportionment as noted by the PQME. They cited E.L. Yeager v WCAB (Gatten) noting that the apportionment decision was supported by the applicant’s truthful history, review of relevant medical records and the PQME’s medical expertise. The WCAB issued a new award reducing the applicant’s PD from 47% to 24%.

We read this determination to mean that the report must be considered in full when making a decision on apportionment, not just looking at the paragraphs under the Apportionment section of a medical report.

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