Vogt v. Westinghouse Electric

Vogt v. Westinghouse Electric, No. WC 13-5619 (April 22, 2014)

In this multiparty action, the prior employer and insurer appeal the Compensation Judge’s apportionment between insurers, among other issues. The WCCA affirms all issues, finding substantial evidence under Hengemuhle to support the Compensation Judge’s findings.

The Employee suffered multiple injuries over the course of a 34 year career to his cervical and lumbar spine, hips, right hand and wrist, and left shoulder. The first two injuries took place while he worked with Schindler, and the remaining injuries took place at Westinghouse. The employee filed a Claim Petition on January 4, 2013 claiming permanent total disability and permanent partial disability for many of his injuries.

At hearing the Compensation Judge found the employee to be PTD, contrary to Schindler’s vocational evaluation. In addition, the Compensation Judge apportioned 90 percent liability to Schindler and 10 percent liability to Westinghouse. Among the medical opinions, none specifically supported a nine to one apportionment. Schindler appealed.

On appeal, Schindler argued that the Compensation Judge’s findings were inconsistent with the medical records. It was undisputed that the Compensation Judge’s apportionment did not coincide with any particular medical opinion. Nevertheless, the WCCA found that equitable apportionment is not “solely a medical determination, but is an ultimate finding of fact based upon the circumstances of the case.” This included weighing the timing and severity of injuries. The WCCA affirmed after determining that the Compensation Judge deserved deference when weighing inferences from the facts.