When Apportionment of an Injury is Appropriate

Harris v. Southern Commercial Glass and/or Southeastern Installation Inc. (8/16/16)

Facts and Procedural History:

Plaintiff sustained a compensable back injury on July 13, 2000 while working for Southern Commercial Glass.  The employer accepted the claim and plaintiff received workers’ compensation medical and disability benefits.  At some point after plaintiff’s accident, the employer terminated his employment, although plaintiff continued to receive workers’ compensation benefits.

In January 2012, plaintiff began working for a new company called Southeastern Installation Inc. He told the new company he had undergone back surgery, that he might need another surgery, and that his former employer was paying for all of his medical treatment.  On April 1, 2014, while working on a job for the new employer, plaintiff bent over slightly and was unable to straighten his back, and reported acute pain.  Following this incident, plaintiff was placed out of work by his treating physician, and he was referred for surgery.

Plaintiff’s former employer initially agreed to authorize his surgery, but later rejected the surgery request, on the grounds that plaintiff had sustained a new injury on April 1, 2014.  The Full Commission found that Plaintiff suffered an injury by accident as a result of a specific traumatic incident occurring on April 1, 2014, that this incident materially aggravated his back condition.  As a result, the Full Commission held that plaintiff’s new employer was solely liable for plaintiff’s resulting workers’ compensation benefits.  Southeastern Installation Inc. appealed, arguing that the Commission erred by failing to apportion liability between both employers for plaintiff’s workers’ compensation benefits.

Applicable case law/statute:

The North Carolina Court of Appeals Court found that the Commission did not assign numerical or percentage values to the relative contributions of plaintiff’s 2010 and 2014 injuries to plaintiff’s subsequent need for surgery and resulting indemnity benefits.  The Commission noted Dr. Cohen responded to a hypothetical question posed by defendants, wherein he stated 70% of plaintiff’s need for surgery was due to his 2010 injury and only 30% was caused by the 2014 incident.  However, the  Commission did not make a finding adopting this testimony as a fact.  Moreover, Dr. Cohen’s response was elicited by a question asking him to assume that the Commission would find the facts to be in accord with plaintiff’s testimony.  The Commission, however, did not find the facts to be in accord with plaintiff’s testimony.  Also, defendants never asked Dr. Cohen what percentage of liability he would assign based on his own testimony and medical records.

The Court further noted the Commission is not required to apportion liability in every case where the percentage of contribution between two separate injuries is known.  The Court affirmed the Full Commission’s decision that Southeastern Installation Inc. and its carrier were solely liable for this claim, in that the medical testimony supported a finding and holding that the aggravation in 2014 was the primary reason for the resulting surgery and disability.

PRACTICE POINT:

Ultimately, the Commission has a great deal of discretion in apportionment cases. Furthermore, it is important to keep in mind that the Commission is not required to apportion liability. As has been raised in previous cases, it will take expert medical testimony to determine whether apportionment is appropriate.