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New York: To Support Apportionment, Prior Condition Must Be Disabling, Not Just Symptomatic

April 03, 2015 (1 min read)







A New York appellate court held it was error to apportion an injured worker’s permanent disability based on medical testimony that 10 percent of the impairment was due to a 2009 work-related injury and that the rest was due to a 1981 work-related injury where the worker returned to work after the 1981 injury and performed various duties for some 28 years until the subsequent work-related accident. It made no difference that during the time frame he was symptomatic; to support apportionment, the employer and its carrier were required to show that the earlier injury actually produced a discernable disability. That could not be shown where the worker continued to be fully employed. In addition, evidence indicated the worker had not received medical treatment for the earlier injury during the ensuing period of time.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to

See Levitsky v. Garden Time, Inc., 2015 N.Y. App. Div. LEXIS 2570 (3rd Dep't, Mar. 26, 2015)] [2015 N.Y. App. Div. LEXIS 2570 (3rd Dep't, Mar. 26, 2015)]

See generally Larson’s Workers’ Compensation Law, § 90.04 [90.04]

For a more detailed discussion of the case, see

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









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