State News : New York

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New York


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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.


Mark Hamberger Receives Greg Saxum Award from New York Self Insurers Association


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. 


Susan Duffy Retires from Partnership


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.


Claimants’ Bar Legislative Priorities Not Limited to Temp Total Bill


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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