NY Board Errs in Apportioning Disability to Preexisting Multiple Sclerosis
Where a worker’s preexisting multiple sclerosis (“MS”) was non-disabling and undiagnosed at the time he suffered a slip and fall injury on ice, striking his head on the pavement, it was error for New York’s Workers’ Compensation Board to apportion his disability at 40 percent for the work-related injury and 60 percent for the preexisting MS condition, held a state appellate court [Matter of Whitney v. Pregis Corp., 2019 N.Y. App. Div. LEXIS 6835 (3d Dept. Sept. 26, 2019)]. There was no evidence, said the appellate court, that the worker’s MS precluded him from performing the duties of his employment.
Background
In December 2013, claimant, a maintenance technician, slipped and fell on ice, striking his head on the pavement. He 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 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. Following a hearing and submission of medical evidence, however, the WCLJ denied claimant’s request to amend the claim and apportioned claimant’s disability at 40 percent to the work-related injury and 60 percent to the unrelated, preexisting MS condition. The Board affirmed and claimant appealed.
Non-disabling, Preexisting Conditions
The court initially noted the rule in New York that, as a general rule, apportionment is not applicable 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. That is to say, degeneration and infirmities that have not previously produced disability are not a proper basis for reduction in a claimant’s compensation.
The court added that the Board had failed to set forth its reasoning as to why apportionment was applicable. There was no evidence whatsoever that claimant’s MS precluded him from performing the duties of his employment. Apportionment of claimant’s award was, as a matter of law, inappropriate, concluded the court.
Comment
This decision represents the majority rule in the United States. See Larson’s Workers’ Compensation Law, § 90.04.