Workers Compensation: Commissioner has discretion not to “apportion” impairment between work injury and other conditions; is not bound by AMA Guide.

Kapusta v. Dept. of Health/Risk Management (2008-383) (24-Jul-2009) 2009 VT 81 (Dooley, J.)

Employer appeals from an opinion of the Commissioner of the Department of Labor declining to apportion the responsibility for a permanent partial impairment between claimant's non-work-related condition and her work-related injury. Employer contends that Vermont law requires apportionment in this case. Alternatively, employer asserts that if the Commissioner was not required to apportion, but had the discretion to do so, she abused that discretion by declining to apportion in this case. Claimant argues that the law prohibits apportionment and the Commissioner has no discretion to allow it. We affirm the Commissioner's conclusion that the relevant statutes neither require nor forbid apportionment in this case; rather, the statutes leave this issue to her discretion. We further affirm her decision because it was not an abuse of that discretion to decline to apportion the impairment in this case.

Employer argues that § 648(b) requires apportionment because the section incorporates the AMA Guides and the AMA Guides require apportionment. However, § 648(b) provides only that the AMA Guides are to be used to determine "the existence and degree of permanent partial impairment." Apportionment is an issue of workers' compensation policy rather than medical judgment. The purpose of the AMA Guide is to assist medical professionals, not to set workers' compensation policy. AMA Guides' language is permissive and descriptive, rather than prescriptive, and does not require apportionment. Further the Legislature specifically addressed apportionment in limited circumstances in 21 V.S.A. § 648(d), and would not have needed to require apportionment in this one specific circumstance if apportionment is required in all circumstances under § 648(b). We thus affirm the Commissioner's decision that § 648(b) does not require apportionment in any case.

We reject claimant’s argument that the Commissioner had no discretion to apportion. In Marsigli's Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 192 A.2d 799 (1964), we considered a case in which a claimant was impaired by cancer and a work injury accelerated the progress of the disease and the disability. The employer argued that the compensation and medical benefits should be apportioned between the disease and the work injury, with the employer responsible only for those caused by the latter. We held: "[o]ur statute makes no exceptional provision for apportionment of the compensation or medical benefits between the injury and pre-existing disease. Without such a provision, there is no requirement that the commissioner . . . determine the relative contribution of the accident and the prior disease to the final result." Id. at 104, 192 A.2d at 806; see also Stamper v. Univ. Apartments, Inc., 147 Vt. 552, 554, 522 A.2d 227, 228 (1986) (upholding Commissioner's refusal to apportion current permanent impairment percentage between current work injury and prior injury). The Commissioner examined 21 V.S.A. § 648 and our case precedents and concluded that the statute, as currently worded, did not take away her discretion to apportion in cases involving preexisting uncompensated impairments. We find no clear indication of error and defer to the Commissioner's interpretation of the relevant statutes.

Here the Commissioner's decision does not constitute an abuse of discretion, because the Commissioner determined that claimant was fully functional and pain-free at the time of the work-related injury. The Commissioner was not bound by AMA Guides, which assigned a 15% impairment to claimant based on her hip replacement, but instead could reach her own determination of the extent to which the hip replacement interfered with the ability of claimant to do her job and the extent of that ability after the work-related injury.