Playing the Percentages – Apportionment of Occupational Disease Claims


In general, the burden of proving an occupational disease is quite heavy.  One must show that a disease was caused by the job and nothing else.  If the disease is one that is suffered by a large portion of the general public, that can be quite a feat.

To add insult to injury, the Workers’ Compensation Act includes a statute, O.C.G.A. 34-9-285, which allows for the apportionment of benefits if the injured worker suffers from any conditions other than the occupational disease.  What is meant by that is that if a person contracts an occupational disease, but that same person also suffers from a disease which makes the symptoms from the occupational disease worse, the Administrative Law Judge has the discretion to reduce the employees weekly benefits and medical benefits by the percentage of suffering deemed caused by the condition that is not work-related.

The income benefits can be adjusted by either reducing the amount received on a weekly basis, or by reducing the number of weeks that benefits are available.  Take for example a situation in which an employee’s average weekly wage would normally allow for the payment of temporary total disability benefits $500.00 per week.  If the judge then determines that an occupational disease is responsible for sixty percent of an employee’s disability, the judge could rule that the employee is only entitled to $300.00 per week, or, alternatively, the judge may reduce the total number of weeks the employee receives benefits by sixty percent.

At first glance, the statute may make sense.  However, it creates a situation in which a judge must actually weigh the evidence to see which condition is making the employee sicker, and in what proportion. Then, even if the employee would not actually be disabled without the presence of the occupational disease, the judge can reduce benefits.  This is not something that is permissible when the worker is disabled by an accident.