The issue of apportionment of liability arises when the Claimant sustains multiple injuries with different Employers or different carriers. This situation arises where a Claimant sustains an initial workplace injury that leads to a medical condition causing disability or impairment of earning power, and then a second workplace injury results in a second disabling event, which results in loss of earning power.

The Courts have held where a Claimant had returned to work after his first injury and then a worsening of his medical impairment caused renewed disability, the finder of fact must determine whether the worsening condition results from a recurrence or an aggravation of the original injury. The terms “aggravation of a preexisting condition” and “recurrence of a prior injury” are legal terms that are utilized to attribute causation of the current disability to a particular event or series of events. Reliable Foods, Inc. v. WCAB (Horrocks), 660 A.2d 162, 166 (Pa. Cmwlth. 1995). The Court has defined a recurrence as a compensable disability that results directly from a prior injury that occurs only after an injury incident which does not contribute materially to the disability. City of Williamsport v. WCAB, 423 A.2d 817, 818 (Pa. Cmwlth. 1980).

For example, if a Claimant sustained a compensable injury in the nature of a broken foot with Employer A. The Claimant then is placed on restrictions and is able to return to work with Employer B. However, the Claimant is unable to continue employment with Employer B because of continued pain in his foot. In that instance, it would be deemed that the Claimant had suffered a recurrence of the foot injury he sustained with Employer A. Conversely, where the intervening incident does materially contribute to the renewed physical disability, a new injury or aggravation has occurred. SFK USA, Inc. v. WCAB (Smalls), 728 A.2d 385, 387 (Pa. Cmwlth. 1999). An illustration of an aggravation occurs when a Claimant sustains a compensable work-related sprained right wrist as a result of a fall with Employer A. The Claimant eventually returns back to work with Employer B and falls again, this time breaking his right wrist. In this scenario, the Claimant sustained an aggravation of the preexisting condition in his right wrist. Under these circumstances, the carrier who is insuring the Employer when the subsequent aggravation occurred is the responsible carrier. Lackawanna Refuse v. WCAB, 449 A.2d 899, 899-900 (Pa. Cmwlth. 1983).

The Court recognized that in most situations, both the original injury and the subsequent occurrence contribute in some way to the disability at issue. However, it is held where the Claimant has worked for different Employers or one Employer had different carriers at the time of the two events, the Court must attribute causation of the current disability to one event or the other. SFK USA, Inc.v. WCAB, 728 A.2d at 387. The Court has held that in a recurrence scenario, the second Employer has no responsibility at all because the second event has not materially contributed to the Claimant’s current condition. In the case of an aggravation, the second Employer bears the entire responsibility for the Claimant’s recent loss of earning power despite the fact that both injuries materially contributed to the Claimant’s current physical condition. In the case where both injuries contribute materially, the Court has looked toward earning power. In this scenario, the Court has held that if the Claimant has returned to work after the first injury with no loss of earning power, the second Employer bears full responsibility for whatever loss of earning power is occasioned by the aggravation. South Abington Township v. WCAB, 831 A.2d at 182. 

What It Means to You

When apportioning liability for a Claimant’s multiple injuries between Employers or carriers, the Court will look to determine whether the second event materially contributed to the disability which arose out of the first event. If there was no material contribution, the Claimant sustained a recurrence and Employer A will bear full responsibility for the second injury. If the second injury materially contributed to the Claimant’s disability, Employer B will be liable for disability and the second event will be treated as a new injury. In the event the Court determines that both conditions materially contributed to the Claimant’s physical condition, the Court will look to earning power to determine which Employer will be liable for the payment of benefits.