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Apportionment and Inconvenient Bedfellows

The applicability of apportionment on a case by case basis is not a debate which will be over soon. However, by staying on top of the medicals on the file, and ensuring a thorough medical history is developed, Defendant can put themselves into a better position to argue for the application of apportionment where we can establish the industrial injury is not the sole cause of the permanent disability.


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HOW TO AVOID A “SNATCH DEFEAT FROM THE JAWS OF VICTORY”

It is not enough for a doctor to simply assign a percentage of non-industrial apportionment, as was the case in Moreno. If you are in receipt of a report with a similar conclusory opinion on apportionment, do not assume that such opinion will be approved by a judge in determining an applicant’s permanent disability. Recall that it is the defendant’s burden to prove that apportionment is supported by substantial medical evidence. There are options that must be undertaken prior to settling in order for the opinion to hold up in court.


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