In a post-2007 reform world, the percentage disability became more important for one major purpose: establishing a capped benefit system for nonscheduled awards. From a carrier perspective, this was a positive and a step in the right direction as the Board was finally placing limits on the number of weeks that a claimant with a partial disability rate can receive benefits. The issue arose then of what to do with a claimant who was classified with a nonscheduled award, but subsequently had a period of total disability. This was addressed in the Jacobi case and held that, due to the finding of a permanent partial disability, both the number of weeks remained in place, as well as the previously determined permanency rate. The Board held that the period of total was a temporary situation, which does not alter the prior permanency finding. While still leaving some aspects unclear, we had a direction and standard to follow.
The Third Department recently negated this holding as it pertains to both the rate and number of capped weeks. In Sanchez v Jacobi Medical Center, 2020 N.Y. Slip Op. 01235, the concept of having periods of total disability apply against the number of capped weeks was thrown out, without much clarification. The Third Department differentiated WCL Section 15 into multiple provisions. They differentiated benefits paid under WCL Section 15(2) total disability and Section 15(3) partial disability. The court held that they are two separate and distinct periods and that benefits paid under Section 15(1), as they are paid under a separate provision, do not qualify as benefits paid under Section 15(2). This reasoning led to the finding that the number of capped weeks are essentially tolled during periods of subsequent total disability.
The major problem that arises is identifying an actual period of true total disability. This is easy to determine when the claimant has a major surgery and can be addressed by an Independent Medical Examination (IME) and potentially depositions of the treating doctor, specifically addressing when the total disability period ends and the partial disability resumes. The new Jacobi decision makes its opinion easy to decipher in this type of instance. They specifically find that if a surgery rises to the level of a change of condition under Section 15(6), the Board could go back and modify prior periods anyway under their continuing jurisdiction power.
What about, for example, an unrelated exacerbation? A flare-up? A change in medication? An injection? Or even a provider that refuses to accept that their patient is not partially disabled? The Third Department ruling seems to now make it incumbent upon a carrier to either obtain an IME or to request cross-examination of the treating doctor every time the claimant’s disability is listed as 100 percent, or risk a period of payments where the caps do not toll. Unfortunately, these answers are speculative, at best, pending further development of the record.
The potential silver lining is that the new Jacobi decision left an argument open that it should be limited to its facts: a subsequent surgery that rises to the level of a change of condition. However, until the Board agrees with such a limitation, the carrier will be required to review each medical narrative to catch a possible increase as quickly as possible in order to take the appropriate mitigation steps.