Commissioner not required to apportion causal responsibility for impairments

In Vermont, there is no requirement in the law that workers' compensation benefits and medical benefits be apportioned between a work-related injury and a preexisting disease or injury.

Case name: Kapusta v. Department of Health/Risk Management, No. 2008-383 (Vt. 07/24/09).

Ruling: The Vermont Supreme Court upheld the finding that the commissioner of labor was neither required nor forbidden from apportioning the responsibility for an employee's permanent partial impairment between her preexisting condition and her work-related condition.

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What it means: In Vermont, there is no requirement in the law that workers' compensation benefits and medical benefits be apportioned between a work-related injury and a preexisting disease or injury. The commissioner has discretion to determine the apportionment of the work-related accident and the preexisting condition.

Summary: A health outreach specialist underwent nonwork-related hip surgery. She returned to work but slipped on ice in the parking lot, causing her hip and thigh to twist. She was examined by a doctor and an independent medical examiner. Using the American Medical Association Guides to the Evaluation of Permanent Impairment, the doctor assigned her a 15 percent impairment. The IME assigned her a 20 percent impairment, attributing 5 percent to the specialist's work-related accident. The commissioner of labor adopted the IME's 20 percent impairment finding but determined the AMA Guides were permissive. She declined to apportion the impairment to its causes. The employer argued the commissioner was required to reduce the amount of compensation to reflect the preexisting hip impairment. The Vermont Supreme Court determined that the commissioner had discretion to apportion the impairments. It stated the AMA Guides are only used as guides to determine the existence and degree of impairment, but apportionment was an issue of workers' comp policy rather than medical judgment.

The Supreme Court noted the AMA Guides themselves provide that states may design and implement apportionment schemes. Further, the court pointed out that the Vermont Legislature specifically provided one set of circumstances where apportionment was required. The court indicated that if the legislature had intended for apportionment between preexisting conditions and work injuries to be mandatory in all circumstances, it would have stated it as such.

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October 1, 2009

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