How to apportion green eggs and ham

    For those of you who were able to make our Markow Walker Seminar on February 13, we were glad to have you. It was a tremendous turnout (70+ representatives from both employers and carriers), and besides the in-firm speakers, we had Dr. Chad Hosemann of Capital Orthopedics, Ty Pennington of Rehabilitation, Inc. and Megan Garrott, Esq. (Senior Staff Counsel) from the Commission. For 2020 (Wow, it’s hard to believe that is next year. I expected flying cars by 2020.), if any of you have recommendations for speakers, please let us know as we are always looking to add to our lineup with speakers that our clients want to hear from.

    Speaking of flying cars, one of the most talented writers of the 20th century would have celebrated his 116th birthday this week (RIP) on March 2, 2019. Who, you might ask? Theodor Seuss Geisel, AKA Dr. Seuss, of course. If not for Dr. Seuss, we would have been deprived of such works of art, including: Horton Hears a Who!, The Cat in the Hat, and my personal favorite, How the Grinch Stole Christmas!. In honor of the late artist, schools all around are celebrating by dressing for “Wacky Wednesday”. My kids will be eating green eggs and ham at school on Monday in remembrance. We all should, right? My kids are as wacky as they come, but they obviously got that part honest.

    One question I have been asked recently deals with apportionment. In response, I wanted to take the time to go through the wacky details of what an apportionment claim actually consists of, and what you can apportion, as it varies from state to state.

    The first question I generally receive regarding this topic deals with what all can be apportioned. In MS, only permanent disability benefits may be apportioned. Benefits are not reduced until the claimant reaches a date of maximum medical improvement. In summary, temporary partial disability, temporary total disability and medical benefits are NOT apportioned.

    Prior to July 1, 2012, there were four elements required to apportion benefits. One had to be able to show:

1. A pre-existing physical handicap, disease, or lesion;
2. Which is a material contributing factor in the results following the accidental injury;
3. Which is established, or “shown”, by medical findings; AND
4. Which was occupationally disabling to the employee prior to the date of injury.

    For all injuries which occurred on or after July 1, 2012, the pre-existing condition does NOT have to be occupationally disabling for the apportionment to apply. Prior to 2012, it was almost impossible to prove the “occupationally disabling” prong of the four-part test. This was considered significant legislation once passed, but in practice, I have not seen many claims where apportionment applies even after the law change of 2012.

    Either prior to or after 2012, regardless, you will need medical testimony not only as it relates to the pre-existing medical condition, but also to establish the effect the pre-existing condition has on the results following the work-related injury. Absent medical testimony, the employer cannot meet the burden of proving apportionment. However, the existence of a pre-existing condition can be utilized as leverage in certain circumstances when negotiating a potential settlement.

    It takes a very specific fact pattern to make a claim for apportionment, which is more rare than we would often like to think. If you have a claim where you think apportionment may apply, please send me an email or call me and I would be happy to discuss your specific scenario with you.