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A bill
amending the definition of temporary total disability in the New York
Workers’ Compensation Law has passed both the Senate and the Assembly
and now needs only Governor Hochul’s signature to become law. The
bill modifies Section 15(2) of the Workers’ Compensation Law to
define temporary total disability as “the injured
employee’s inability to perform his or her pre-injury employment
duties or any modified employment offered by the employer that is
consistent with the employee’s disability.” Presently, temporary
total disability in New York is not defined by the statute. In the
absence of statutory guidance, caselaw and Board policy require that
a temporary total disability finding be based on medical evidence
showing a claimant’s inability to perform any type of employment, not
just the claimant’s pre-injury or at-injury job.
The revised definition of temporary total disability in the bill may
effectively eliminate both temporary partial disability awards and
the attachment to the labor market defense. Traditionally,
assessments of temporary disability were made by physicians and the
determination of the degree of disability was based on the Board’s
evaluation of the opinions given by the medical experts in each case.
A claimant’s inability to return to his or her pre-injury employment
is not necessarily a medical determination. Should this bill become
law, even claimants who retain significant work capacity, but are
found to be unable to return to their pre-injury employment or
modified work by the employer, may receive temporary total disability
benefits. Such claimants will be treated as having a total disability
regardless of the degree of disability opined by their own
physicians. This will give injured workers little incentive to
attempt to return to work. Even a claimant who has as little as a 5%
degree of disability will be allowed to receive temporary total
disability awards so long as they are unable to perform all of their
pre-injury employment duties.
We predict that this bill will significantly reduce the application
of the attachment to the labor market defense. Recall that a claimant
is only required to demonstrate attachment to the labor market if
that claimant is under a partial disability. Should this bill become
law, for the reasons noted above, it will be easier for a claimant to
remain on temporary total disability status. Even if a claimant’s own
physician opines that the claimant has a significant work capacity,
so long as the claimant is unable to perform his or her pre-injury
employment duties, the claimant will still be deemed temporarily
totally disabled and will not be required to look for work.
Another consequence of the bill is that it will increase the
protracted healing period for schedule loss of use awards. Given the
ease with which a claimant can maintain temporary total disability
status under the definition provided in this bill, we expect that
claimants will easily exceed the protracted healing periods set out
in the statute. This will result in significant increases in schedule
loss of use awards, due to the additional award for protracted
healing, at permanency.
Most concerning is this bill’s potential to eliminate the permanent
partial disability caps in WCL §15(3). Although this bill purports to
modify only the definition of temporary
total disability under WCL §15(2), recall that the
Appellate Division in Sanchez
v. Jacobi Medical Center, 182 A.D.3d 121 (3d Dep’t 2020)
ruled that in the case of a claimant who is classified with a
permanent partial disability and is later found to have a temporary
total disability, the earlier permanent partial disability
classification is set aside and the durational limit (or “cap”) of
that permanent partial disability is tolled while the claimant is
receiving temporary total disability benefits. Thus, under this new
definition of temporary total disability, permanently partially
disabled claimants could potentially receive temporary total
disability benefits indefinitely so long as they are “unable” to
return to their at-injury job.
Finally, the proposed bill will increase litigation costs for
employers and carriers. Since the determination of total disability
is no longer solely a medical question, parties will want to take
testimony from the claimant and employer witnesses to determine the
claimant’s at-injury job duties and the claimant’s ability to perform
them, not to mention whether an offer of modified duties is
consistent with the disability. Because the question of
total disability is now specific to each claimant’s unique
circumstances, this bill will also increase the need for physician
depositions. Parties to a case will want to cross-examine the
physicians on the claimant’s ability to return to work to that
claimant’s specific job, or to any modified job offered by the
employer.
We recommend that, should this bill be signed by the governor, that
employers make every effort to return claimants to light duty work
consistent with work restrictions assigned by their physicians. We
would also recommend that carriers and administrators work with
employers to obtain detailed descriptions of the physical
requirements of a claimant’s at-injury job at the beginning of a
claim as this evidence will be needed in determining total disability
throughout the case.
The remaining steps for this bill to become law are delivery to the
governor by the legislature and signing of the bill by the governor.
It is possible that the governor could insist on chapter amendments
to the bill prior to signature or even veto the bill entirely. We
recommend that our readers with an interest in preventing this bill
from becoming law to write to their elected officials, especially
Governor Hochul, to oppose enactment of this amendment into law.
Please feel free to contact our partner Ron
Weiss with any questions about this topic.
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Mark
Hamberger Receives Greg Saxum Award from New York Self Insurers
Association
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Congratulations
to Mark
Hamberger, who received the Greg Saxum Award from the New
York Self Insurers Association (NYSIA).
The Greg Saxum Award is NYSIA’s highest honor, and is given in
tribute to the legacy of Attorney Greg Saxum, who provided inspired
leadership, unwavering friendship, wisdom, and wit to NYSIA for more
than 30 years. The Greg Saxum Award is awarded by the NYSIA Board of
Managers to an individual who exhibits these qualities. We are
thrilled that Mark was bestowed this tremendous honor.
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Susan
Duffy Retires from Partnership
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Susan
Duffy will
retire from her H&W partnership but will maintain "Special
Counsel" status with the firm effective 6/30/22. Susan intends
to be available for special projects for the firm from time-to-time.
Susan was one of the founding partners of Hamberger & Weiss. She
specialized in complex claims and has always had an interest in
legislation and policy issues. She was a member of the Governor’s Advisory
Committee on the Re-codification of the New York State Workers’
Compensation Law. She was also a team member for the Business Council
of New York on the Governor’s Task Force, which worked to establish
procedures and guidelines to effectuate the 2007 reform legislation
on loss of wage earning capacity and permanent partial disability
benefit caps.
A prior Chair of the New York State Bar Workers’ Compensation
Division, Susan has lectured widely on workers’ compensation topics
and mentored many attorneys and claims representatives on the
vagaries of New York Workers’ Compensation practice over the years.
Susan is listed in The
Best Lawyers in America in the field of Workers’
Compensation Law and was inducted as a Fellow in the College of
Workers’ Compensation Lawyers in 2012.
We will miss Susan’s daily presence in the office, her wisdom, wit,
good humor, and eagerness to take on difficult problems. We wish
her and her family all the best in her retirement.
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Claimants’
Bar Legislative Priorities Not Limited to Temp Total Bill
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In addition
to the bill defining temporary total disability, there are at least
two other pending bills pending in the legislature that, should they
become law, will significantly increase workers’ compensation costs
in New York and undue much of the compromise reached in the 2007
workers’ compensation reform package.
Bill A1220-A/S1024 would amend the definition
of permanent total disability under WCL §15(1) to include a
claimant’s inability to perform “the full range of sedentary work, or
approval for federal Social Security Disability benefits as a result
of compensable accident or occupational disease.” This bill is
currently pending in the New York State Senate Rules Committee. This
bill would further serve to destroy the durational limits (caps) on
permanent partial disability benefits by easing the way for many more
claimants to be classified with a permanent total disability. The
caps on permanent disability benefits only apply to permanent partial
disability. This bill would allow those claimants who qualify for
federal Social Security benefits to obtain permanent total disability
benefits. Additionally, the bill includes the vague language "the
full range of sedentary work,” which would suggest that those
claimants alleging an inability to perform all components of
sedentary work would qualify for permanent total disability.
Bill A1098/S1023 would amend WCL §35 (the
“Safety Net” provisions) to define “extreme hardship” and allow the
extreme hardship provision to apply to claimants with a loss of wage
earning capacity greater than 50%. Presently, the extreme hardship
provision would only apply to claimants with a loss of wage earning
capacity greater than 75%. Whether or not a claimant has an “extreme
hardship” allowing reclassification with a permanent total disability
or total industrial disability is currently decided on a case-by-case
basis by the Board. This bill would define “extreme hardship” to
allow it to apply where the claimant’s income from Social Security
disability benefits and disability would be less than fifty percent
of his or her average weekly wage upon termination of permanent
partial disability benefits, if the claimant will be unable to meet
expenses for himself or herself and any dependents upon termination
of permanent partial disability benefits, where additional medical,
functional, or vocational factors arose after classification that
further eroded the claimant’s wage earning capacity, or where the
claimant’s income would be below the federal poverty guidelines upon
the end of his or her permanent partial disability benefits.
Without a definition of what “expenses” claimants are unable to meet
for themselves and their dependents, nearly all claimants could find
a way to qualify for extreme hardship reclassification. Also, given
that age is an aggravating factor in loss of wage earning capacity,
every claimant will be arguably be able to qualify for extreme
hardship reclassification for the simple fact that they are older
upon the termination of their permanent partial disability benefits
than they were when they began.
We recommend that our readers with an interest in preventing these
bills from becoming law to write to their elected officials to oppose
them.
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Hamberger
& Weiss LLP - Buffalo Office
700 Main Place
Tower
350 Main
Street
Buffalo, NY
14202
716-852-5200
buffalo@hwcomp.com
Hamberger
& Weiss LLP - Rochester Office
1 South
Washington Street
Suite 500
Rochester, NY
14614
585-262-6390
rochester@hwcomp.com
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