The Public Agency Risk Management Association, or PARMA, hosts an annual conference about the latest trends and strategies that public agencies should know about for managing risks. The 2022 conference took place in Anaheim, California on February 27th thru March 2nd, and focused on topics related to safety & health, risk management, workers’ compensation, liability, leadership, and insurance.
Boxer+Gerson attorney Amy Shen spoke on a panel titled “What’s Work Got to Do With It?: Emerging Law and Litigation over Vocational Apportionment“. Her co-panelists included Kate Lozano (Laughlin Falbo) and Nick Corso (Corso Vocational Counseling).
During the presentation, the panelists discussed the topic of apportionment, which is the process of reducing a disability award based on other causes of injury that are not work-related. When a worker is injured at work, the employer or their insurance company is responsible for paying the full amount for medical care related to the injury. However, the injured worker’s permanent disability award may be reduced by a percentage if their disability is partly related to a pre-existing medical condition, a previous work injury, or a prior injury not related to work. That reduction is called medical apportionment, where doctors use medical evidence to determine what percentage of the condition is related to work — and also what percentage is not related to work. The amount of money the employer or insurance company must pay is reduced — or “apportioned” — by that percentage amount. So, if a worker claims a work injury for their wrist, but a doctor determines that 50% of the disability was caused by playing sports, the insurance company would allege they need to only pay 50% of the injured worker’s disability award.
Amy Shen’s panel discussed an evolving trend in workers’ compensation that uses evidence from vocational experts to challenge medical apportionment. A vocational expert is used to analyze how work is performed within specific industries and evaluate the extent of an injury based on the physical requirements to complete a task or job in that industry or field. They draw conclusions from the worker’s permanent work restrictions and determine whether an injured worker is amenable to rehabilitation. For example, a vocational expert may testify that an injured construction worker, based on the work restrictions provided by the doctor, has a diminished ability to compete in the open labor market and is not amenable to rehabilitation and thus, should receive a full disability award. These vocational experts are often used to challenge a partial disability award based on the permanent disability rating schedule (PRDS), arguing with vocational evidence that the injured worker should receive a 100% disability award.
Apportionment can be an obstacle to injured workers receiving the compensation that they deserve. At Boxer+Gerson, we put our full effort into the fight for our clients. Staying on top of the latest legal trends, and leading with compassion, are both central to our mission of getting the best possible outcome for our clients.
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