New York: No Apportionment Where Preexisting Condition Did Not Affect Job Performance

Illustrating that apportionment between a preexisting condition and a work-related injury is a legal determination involves broader issues than merely examining the medical findings, a New York appellate court affirmed a decision by the state’s Board that refused to apportion a worker’s disability based upon a preexisting, noncompensable lung cancer condition and a subsequent work-related injury to his right should (and also for thoracic strain). The court acknowledged that the employer had come forward with medical evidence supporting apportionment of the claim, but it also noted the state’s general rule — that there is no apportionment where the claimant was able to perform his or her job effectively at the time of the subsequent work-related injury, in spite of the preexisting condition. The court stressed that here, the employee was fully capable of performing his job prior to the work-related injury.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Matter of Cox v. Suburban Propane, LP, 2020 N.Y. App. Div. LEXIS 701 (Jan. 30, 2020)

See generally Larson’s Workers’ Compensation Law, § 90.04.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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