Home 9 MAD News 9 Section 44: Not Even a Portion of Liability For The Occupational Disease

Section 44: Not Even a Portion of Liability For The Occupational Disease

Apr 5, 2021 | MAD News, NYS Workers Compensation

The claim was established for occupational disease to the bilateral hands and ankles and the claimant, a landscaper, was ultimately awarded a loss of use of 15% for the hands and 10% for the ankles.   In an attempt to invoke Section 44 apportionment, the carrier on risk obtained the claimant’s social security employment records for all employers over the course of 10+ years to alleviate their financial liability.  The Law Judge set the date of contracture based on medical records dating back to 2010, which allegedly reported the claimant’s first complaints of pain in his hands.

All employers since that date were then placed on notice, based on a rather speculative IME who could not apportion the occupational disease objectively, rather he was forming an opinion of “fairness” for all carriers.   The claimant testified to the pain in his bilateral wrists and ankles and that the pain didn’t really start until he was hardscaping and working full-time for the originally liable employer.   Moreover, he testified that he was using a jackhammer in 2010, had pain in the bilateral hands for a few days, and then did not have pain again for at least 6 years.  The Law Judge changed the date of contracture based on this new testimony, as it became clear that the 2010 complaints were not related.

Apportionment under Section 44 was not appropriate.  Notably, the same IME who “fairly” apportioned the injuries over the course of 10 years, also indicated he did not know why any loss of use was found for the hands.  In retrospect, the original carrier should have disputed the SLU instead of attempting to apportion.  Hindsight is 2020, not 44.

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