Today’s post comes from guest author Brody Ockander from Rehm, Bennett & Moore.
Can I get workers’ compensation benefits for an injury even though I had a past workers’ compensation claim?
The simple answer is yes. In nearly all instances, you would be entitled to full benefits for your new injury regardless of whether you have already experience a workers’ compensation injury in the past.
“Apportion” or “Apportionment” means that your employer is allowed to assign disability to a previous workers’ compensation injury to the same body part, which reduces the money benefits for your current injury. However, only under certain situations is your employer allowed to “apportion” benefits from your current injury to a past injury.
Specifically, in order to “apportion” your current injury to a previous injury (thereby reducing money benefits) there needs to have been a loss-of-earning-capacity evaluation for your previous injury. Often, this is not present. Even in rare situations where there was a previous loss-of-earning-capacity evaluation attributable to a previous workers’ compensation injury, your employer must still show that the previous injury:
- was an injury to the body as a whole (usually the back, neck or head);
- was independently producing some disability prior to the current accident/injury;
- continued to operate as a source of disability after the accident; and
- you were actually “compensated” for that previous injury.
If your employer is able to show these four factors, they will attempt to apportion a certain percentage of your past injury’s disability from the amount of disability that you have with your current injury as determined by a loss-of-earning-capacity evaluation. However, being able to satisfy the four factors is rare for an employer, and you are probably still entitled to the full amount of benefits regardless of what your employer, a nurse case manager, or an insurance adjuster is trying to tell you.
In sum, if you are injured at work, you always have a workers’ compensation claim with your employer, regardless of whether you were injured in the past, either at work or somewhere else. In addition, the vast majority of the time, you would be entitled to full benefits from your current injury if it was to a different body part or even if the injury was to the same body part, unless the circumstances are near perfect for your employer to be able to apportion some of your disability to a past injury.