June 2, 2021
After an injured worker has been classified permanently partially disabled (PPD), medical evidence may show that their condition has worsened and that they are now temporarily totally disabled. This frequently occurs after an injured worker undergoes causally related surgery. If the injured worker's PPD benefits are capped pursuant to Section 15(3)(w) of the Workers' Compensation Law (WCL), any periods subsequent to the PPD classification during which the injured worker is found to be temporarily totally disabled, or temporarily partially disabled but not yet at maximum medical improvement (MMI) following a period of temporary total disability, will not count against the caps (see Matter of Sanchez v Jacobi Medical Center, 182 AD3d 121 ; Matter of Sanchez v Jacobi Medical Center, __ AD3d __, 2021 N.Y. Slip Op. 02039 ).
The Workers' Compensation Board (Board) will follow the procedures outlined below with respect to alleged periods of temporary total and temporary partial disability which occur after a PPD classification.
Temporary Total Disability After Surgery
When the insurer voluntarily begins paying awards at the total rate after an injured worker undergoes surgery, they will file a SROI-CB with the Board reflecting the change in benefit payments. Upon receiving a SROI-CB, the Board will issue a decision reflecting the awards. If the insurer fails to file a SROI-CB as required, a penalty of $50 will be assessed pursuant to WCL §25(3)(e). Additional penalties may be imposed if a hearing is needed to address periods and rates of disability due to the insurer's failure to timely file a SROI-CB.
If an injured worker undergoes causally related surgery after being classified PPD and there is evidence that the injured worker is totally disabled following the surgery, but the carrier or self-insured employer (SIE) has not voluntarily begun paying awards at the total rate and filed a SROI-CB, the injured worker may file a Request for Assistance by Injured Worker (Form RFA-1W) requesting that the Board address the issue of whether benefits should be increased to the total disability rate. Additionally, the injured worker's counsel can file a Request for Further Action by Legal Counsel (Form RFA-ILC).
An insurer must follow the procedures described in 12 NYCRR 300.23 prior to reducing any benefits for temporary disability.
If the insurer files an RFA-2 requesting that the Board address the issue of whether the injured worker has reached MMI following the surgery, and there is medical evidence in the record indicating that the injured worker has reached MMI, a hearing will be scheduled to address awards.
Temporary Total Disability After PPD Classification – No Surgery
When an injured worker who has previously been classified PPD believes there is medical evidence indicating that their causally related permanent physical impairments have worsened sufficiently to find that they are now temporarily totally disabled, but have not undergone causally related surgery, the injured worker is required to file with Board an application for rehearing or reopening pursuant to 12 NYCRR 300.14, utilizing Form RB-89 (Application for Board Review). If the Board determines that there is sufficient evidence to reopen the claim to consider whether awards should be made at the temporary total disability rate, the matter will be restored to the trial calendar to address that issue.
For questions regarding these updates, please email OfficeofGeneralCounsel@wcb.ny.gov.