GREY & GREY
Workers’ Compensation – Apportionment (2009)
Everyone is at risk of suffering an injury to the legs, ankles, knees or hips. However, professionals who are on their feet for long stretches of time as part of their job are particularly susceptible to this kind of injury. Injuries can range from ACL and meniscus tears, sprains to fractures and permanent disability. Our client injured his knees when he slipped and fell on the job as a sanitation worker. When he was found to have a permanent loss of function of both of his legs, the insurance company took the position that the award should be “apportioned” to pre-existing arthritis. We argued that there was no evidence that the arthritis had limited his ability to work, caused any symptoms, or needed any treatment before the accident, and that therefore the loss was entirely due to the work-related injury. The Board agreed with our position, and the insurance company appealed.
The Appellate Division, Third Department, upheld the full award to our client, agreeing that “there is no indication that [his] pre-existing arthritis constituted a compensable injury and the employer does not contend that [he] was unable to work full time” before the injury.
This is one of many cases in which we have successfully preserved and extended the legal rule that a worker’s compensation benefits should not be reduced because of a previous injury or condition that did not prevent him or her from working.