Summary
stating that, as a general rule, apportionment between a compensable injury and a preexisting condition for the purpose of a workers' compensation claim is not applicable as a matter of law when the claimant was able to effectively perform his job duties at the time of the work-related accident despite the preexisting condition
Summary of this case from Duff v. Kanawha Cnty. Comm'nOpinion
527172
09-26-2019
In the Matter of the Claim of Keith G. WHITNEY, Appellant, v. PREGIS CORPORATION et al., Respondents. Workers' Compensation Board, Respondent.
Mraz & Gaud, PLLC, Albany (Amina Karic of counsel), for appellant. Walsh & Hacker, Albany (Scott R. Toth of counsel), for Pregis Corporation and another, respondents.
Mraz & Gaud, PLLC, Albany (Amina Karic of counsel), for appellant.
Walsh & Hacker, Albany (Scott R. Toth of counsel), for Pregis Corporation and another, respondents.
Before: Egan Jr., J.P., Lynch, Mulvey and Devine, JJ.
MEMORANDUM AND ORDER
Mulvey, J. In December 2013, claimant, a maintenance technician, slipped and fell on ice, striking his head on the pavement. Claimant continued to work for the next few weeks until there was a gradual functional decline. His subsequent workers' compensation claim ultimately was established for injuries to his lower back, right hip and head, as well as traumatic brain injury, postconcussive syndrome, cognitive impairment and hydrocephalus. Shortly after the accident, claimant was diagnosed with multiple sclerosis (hereinafter MS). Thereafter, claimant sought to amend the claim to include trauma-induced MS, claiming that the MS was either directly induced or exacerbated by the work accident. The workers' compensation carrier controverted claimant's proposed amendment to the claim and requested apportionment of claimant's overall disability between the causally-related conditions and the MS. Following a hearing and submission of medical evidence, the Workers' Compensation Law Judge denied claimant's request to amend the claim and apportioned claimant's disability at 40% to the work-related injury and 60% to the unrelated, preexisting MS condition. The Workers' Compensation Board affirmed the decision. This appeal ensued.
Claimant contends that the Board erred in directing apportionment between his compensable injury and his preexisting MS condition. We agree. "As a general rule, apportionment is not applicable as a matter of law where the preexisting condition was not the result of a compensable injury and the claimant was able to effectively perform his or her job duties at the time of the work-related accident despite the preexisting condition" ( Matter of Sanchez v. STS Steel , 154 A.D.3d 1027, 1028, 61 N.Y.S.3d 727 [2017] [internal quotation marks and citations omitted]; see Matter of Liebla v. Gro Max, LLC , 148 A.D.3d 1489, 1490, 50 N.Y.S.3d 622 [2017] ; Matter of Levitsky v. Garden Time, Inc. , 126 A.D.3d 1264, 1264–1265, 6 N.Y.S.3d 697 [2015] ; Matter of Peck v. Village of Gouverneur , 15 A.D.3d 735, 736, 790 N.Y.S.2d 246 [2005], lv denied 5 N.Y.3d 707, 801 N.Y.S.2d 801, 835 N.E.2d 661 [2005] ). "Significantly, degeneration and infirmities which have not previously produced disability are not a proper basis for reduction of compensation" ( Matter of Hogan v. Hilltop Manor of Niskayuna , 303 A.D.2d 822, 823, 756 N.Y.S.2d 344 [2003] [internal quotation marks, ellipsis and citation omitted]; see Matter of Levitsky v. Garden Time, Inc. , 126 A.D.3d at 1265, 6 N.Y.S.3d 697 ).
We note that the Board, other than apportioning claimant's disability, failed to set forth its reasoning as to why apportionment is applicable here. In any event, claimant's MS, although not diagnosed until after the work-related accident, was a preexisting condition. There is no evidence whatsoever that claimant's MS precluded him from performing the duties of his employment. As there is no evidence of an apportionable disability prior to the December 2013 accident, apportionment of claimant's award is, as a matter of law, inappropriate (see Matter of Lattanzio v. Consolidated Edison of N. Y. , 129 A.D.3d 1343, 1343–1344, 11 N.Y.S.3d 738 [2015] ; Matter of Levitsky v. Garden Time, Inc. , 126 A.D.3d at 1264–1265, 6 N.Y.S.3d 697 ; Matter of Morin v. Town of Lake Luzerne , 100 A.D.3d 1197, 1197–1198, 955 N.Y.S.2d 224 [2012], lv denied 21 N.Y.3d 865, 2013 WL 4838816 [2013] ; Matter of Peck v. Village of Gouverneur , 15 A.D.3d at 736, 790 N.Y.S.2d 246 ; Matter of Nye v. IBM Corp. , 2 A.D.3d 1164, 1164–1165, 768 N.Y.S.2d 706 [2003] ; Matter of Hogan v. Hilltop Manor of Niskayuna , 303 A.D.2d at 822–823, 756 N.Y.S.2d 344 ; compare Matter of Liebla v. Gro Max, LLC , 148 A.D.3d at 1490, 50 N.Y.S.3d 622 ; Matter of McCloskey v. Marriott Corp. , 290 A.D.2d 671, 671–672, 735 N.Y.S.2d 666 [2002] ). The employer and its workers' compensation carrier's reliance on Matter of Cool v. TP Brake & Muffler, 305 A.D.2d 886, 759 N.Y.S.2d 597 (2003) ) is unpersuasive inasmuch as here, unlike in Matter of Cool , there was a preexisting condition, not a subsequent nonwork-related incident.
Egan Jr., J.P., Lynch and Devine, JJ., concur.
ORDERED that the decision is reversed, with costs, and matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision.