IN RE: George BREMNER (2006)

Appeal from a decision of the Workers' Compensation Board, filed January 10, 2005, which ruled that apportionment did not apply to claimant's workers' compensation award.

Claimant underwent a right knee replacement surgery in 1991 due to a condition wholly unrelated to his employment.   In October 2002, claimant fell at work and sustained injuries to his right shoulder and right knee.   As a result, he experienced increasing pain in his right knee attributable to the loosening of its replacement components ultimately requiring surgery.   A Workers' Compensation Law Judge thereafter determined that apportionment did not apply to claimant's claim for temporary disability benefits and awarded such benefits without prejudice to the employer's claim for apportionment upon a possible future finding of a permanent disability.   Upon review, the Workers' Compensation Board affirmed, prompting this appeal by the employer.

 As a general rule, apportionment is not applicable as a matter of law where the preexisting condition was not the result of a compensable injury and the claimant was able to effectively perform his or her job duties at the time of the work-related accident despite the preexisting condition (see Matter of Peck v. Village of Gouverneur, 15 A.D.3d 735, 736, 790 N.Y.S.2d 246 [2005], lv. denied 5 N.Y.3d 707, 801 N.Y.S.2d 801, 835 N.E.2d 661 [2005];  Matter of Nye v. IBM Corp., 2 A.D.3d 1164, 1164-1165, 768 N.Y.S.2d 706 [2003];  Matter of Krebs v. Town of Ithaca, 293 A.D.2d 883, 883-884, 741 N.Y.S.2d 303 [2002], lv. denied 100 N.Y.2d 501, 760 N.Y.S.2d 764, 790 N.E.2d 1193 [2003] ).¹  Here, it is undisputed that claimant's preexisting condition was not a compensable injury and, that at the time of the work-related accident, claimant was asymptomatic and fully capable of effectively performing his job duties.   Thus, the Board properly determined that apportionment is not applicable here (see Matter of Peck v. Village of Gouverneur, supra at 736, 790 N.Y.S.2d 246;  Matter of Krebs v. Town of Ithaca, supra at 883-884, 741 N.Y.S.2d 303).

ORDERED that the decision is affirmed, without costs.

FOOTNOTES

1.   This is not a schedule loss of use case;  therefore, it does not implicate the “narrow situation” involving an exception to this general rule (Matter of Scally v. Ravena Coeymans Selkirk Cent. School Dist., 31 A.D.3d 836, 819 N.Y.S.2d 137 [2006] [decided herewith] ).

CARPINELLO, J.

CARDONA, P.J., SPAIN, MUGGLIN and LAHTINEN, JJ., concur.