Forgive me for not explaining the word apportionment sooner in my past blog posts about permanent partial disability awards on Nevada workers’ compensation claims. It’s a bad word, and it means subtraction from the percentage of impairment. It the rating doctor writes in his report that he found you have a 10% whole body impairment, but is apportioning the award by 50%, that means you will be offered a 5% whole body award, or half of the amount of money you would have been offered.
If your adjuster on your claim has been talking or writing about preexisting medical conditions or has mentioned the degeneration noted in x-rays or your MRI reports, you should be prepared for the adjuster wanting the rating doctor to apportion your impairment.. A good rating physician will always throw in a sentence or two that they considered apportionment even if they don’t do any subtracting in coming up with the final percentage. An adjuster who wants your award sliced in half or a good chunk deducted from it, may even write to the rating doctor after she gets his report and ask him to reconsider apportioning the award.
Many rating doctors are falling victim to adjusters who are getting very aggressive about reducing injured workers’ awards. It is no secret among workers’ compensation attorneys that many adjusters have a short list of their favorite rating doctors; ones that they will agree to do the rating rather than have one assigned by the DIR’s rotating list. In order to stay in the adjuster’s good graces and on this short list, some rating doctors will apportion awards when they should not be making subtractions.
Nevada law requires a rating doctor to subtract any prior percentages you receive for a prior award involving the same injured body part. For example, let’s say you hurt your shoulder at work two years ago, had shoulder surgery, and were awarded a 6% PPD based on your inability to move the shoulder completely. Then, you hurt the same shoulder at work again, and you have surgery, and then get rated again. If your shoulder has even less movement after this second accident and surgery, your impairment percentage should be higher. If the rating doctor finds that you now have a 10% whole body impairment, he will be required to then subtract the 6% you received two years ago. The result would be a 4% whole person impairment on the second claim. That is an example of a proper apportionment.
Now,let’s assume that instead of having a surgery on the first shoulder injury two years ago, the injury wasn’t that bad. You had six physical therapy visits, and were then released to return to work full duty. The treating doctor back then did not say you had a likely ratable impairment, so your claim was closed without a rating evaluation. However, after your second work accident, that does require a surgery, the rating doctor finds a 10% whole person impairment based on your inability to move your shoulder well. If the rating doctor tries to subtract from the percentage of impairment because you had a prior shoulder injury, the apportionment probably is wrong. While the rating doctor may apportion an award even if you never received a prior PPD award, there must be a documented basis for an apportionment. In other words, ther rating doctor cannot just guess that some of your motion loss in your shoulder is probably due to the first injury. There must be some medical record to support that you had a loss of range of motion before the second accident.
Most people who receive an apportioned award are upset that they are not offered the full percentage of impairment found by the rating doctor. Just seeing the amount of money that you would have gotten cut in half prompts most people to ask a lawyer if that is correct. Most experienced workers’ compensation attorneys will review your PPD report for free and tell you whether it appears that the apportionment is correct, or whether you should file an appeal and get legal help.
