No Apportionment For NY Claimant’s Preexisting Cancer In Spite of Medical Evidence

In spite of medical evidence that indicated an injured employee’s disability should be equally apportioned between his noncompensable lung cancer condition and a subsequent work-related injury to his right shoulder and right chest and for thoracic strain, a New York appellate court affirmed a Board determination that there should be no such apportionment since, after surgery and other treatment for the cancer, the employee had returned to his full work duties [Matter of Cox v. Suburban Propane, LP, 2020 N.Y. App. Div. LEXIS 701 (Jan. 30, 2020)].

Background

Claimant was diagnosed with noncompensable lung cancer and underwent partial right lung removal surgery in May 2014. He was out of work for approximately six months and then returned to full-time work in the same managerial capacity in January 2015. On June 6, 2016, claimant was sustained work-related injuries and has not returned to work. The employer and its workers’ compensation carrier raised the issues of, among others, apportionment under N.Y. Workers’ Comp. Law § 15(7) and loss of wage-earning capacity. A WCLJ found, among other things, that claimant’s preexisting condition was not a compensable condition and that apportionment was not warranted. The Board upheld the determination that apportionment was not applicable, and returned the matter to the calendar for further development of the record with regard to loss of wage-earning capacity and labor market attachment. The carrier appealed.

General Rule in New York: Apportionment Not Applicable

The appellate court began with the general rule in New York — that apportionment was 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. Since it was uncontroverted that claimant’s prior surgery and cancer condition was not compensable, the dispute focused on whether, prior to the work-related injury, claimant had been able to perform his job duties despite the preexisting condition.

The court stressed that substantial evidence supported the Board’s determination that, prior to his injury, claimant was fully capable of performing his job duties. Claimant testified that he had resumed the same duties. While his oncologist restricted him from working more than 40 hours per week or lifting more than 30 pounds, he testified that the lifting restriction did not impact his ability to perform his managerial duties (emphasis added) because someone was generally available to do that occasional lifting. The injury occurred when he was required to lift a heavy object without help.

Medical Evidence Apportioning Disability Did not Control

The court acknowledged that the employer had introduced medical evidence that claimant’s disability should be equally apportioned between his prior condition and his compensable injury, the Board correctly concluded that apportionment was not appropriate here, as a matter of law.