Weighing Apportionment of Workers’ Compensation Liability

In North Carolina workers’ compensation cases, employers have the ability to assert that liability should be apportioned between or among multiple employers or carriers when more than one is believed to have contributed to a workers’ condition. This is an assertion that would apply to cases where a worker has some prior or pre-existing injury or condition, though the applicability of apportionment is a determination that is made by the state workers’ compensation board (which here is the North Carolina Industrial Commission). workerexcavator

Generally, where a prior condition wasn’t the result of some compensable injury and/or the worker had been able to perform his or her job just fine despite the pre-existing condition, apportionment typically can’t be asserted.

In the recent North Carolina Court of Appeals case of  employer appealed the workers’ compensation benefits awarded to plaintiff on the grounds that it should not be solely responsible for plaintiff’s condition, and that previous employers should share some portion of the liability. The appellate court rejected this assertion, siding with the earlier decision by the NC Industrial Commission that this employer was solely liable for worker’s injuries. 

According to court records, plaintiff was injured in July 2010 while working for another company at a job site in Georgia. Plaintiff injured his back. The company accepted that the worker’s claim was compensable and awarded workers’ compensation medical and disability benefits.

Following this injury, plaintiff returned to his home in North Carolina, where plaintiff and employer agreed to change jurisdiction from Georgia to North Carolina. Plaintiff underwent physical therapy, steroid injections and ultimately a back surgery. He was assigned maximum medical improvement in 2011 with a 15 percent permanent partial impairment rating.

Then in 2012, plaintiff started working for defendant. Plaintiff clearly informed defendant of his injury two years earlier and his workers’ compensation claim. He informed them he’d had one back surgery, that he might need another and that his previous employer was paying all his medical expenses related to this. Plaintiff was examined by an orthopedic surgeon not long after he was hired and despite ongoing pain (which was improving) the doctor cleared him to continue working full-time. Plaintiff returned several more times complaining of pain, but continued to work full-time – sometimes as much as 70 hours weekly – and consistently rejected any suggestion of another surgery.

Then in April 2014, while plaintiff was working in New York on a job for defendant, he bent over and was suddenly unable to straighten his back. The pain was severe and acute.

Plaintiff’s doctor sought authorization from the previous employer to pay for surgery, which was initially granted, but later revoked on grounds plaintiff had suffered a new injury for which the previous employer wasn’t liable.

The worker then sought coverage from his new employer, and while it was not disputed this was a compensable injury, the company sought apportionment of liability from the old employer. However, the industrial commission ultimately ruled the new injury materially aggravated the previous condition and that the new employer was solely liable for plaintiff’s workers’ compensation benefits. That decision was affirmed by the North Carolina Court of Appeal.

If you have been injured at work, contact the Lee Law Offices at 800-887-1965.

Additional Resources:

Harris v. S. Com. Glass, Aug. 16, 2016, North Carolina Court of Appeals

More Blog Entries:

North Carolina Continues to Fight Worker Misclassification, Sept. 10, 2016, Greensboro Workers’ Compensation Lawyer Blog

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