There are very few concepts under the New York Workers’ Compensation system that are in favor of the employer and carrier. Once a claim is established, employers and carriers have few tools on their side to even the playing field in the claimant-friendly world of workers’ compensation. In appropriate situations, for example, employers and carriers can litigate the issues of labor market attachment, fraud under WCL 114(a), and further causally related disability.
In February 2019, a board panel decided the case of Jacobi Medical Center, which can be used as an additional tactic on the side of self-insured employers and carriers. In this case, the claimant was initially injured in 2008. The claimant was classified in 2012, with a 50 percent loss of wage earning capacity and awarded $211.56 weekly permanent partial disability awards not to exceed 300 weeks. After the initial classification in 2012, the claimant had two surgeries. In November 2017, the claimant’s counsel tried to argue that the permanent partial disability (PPD) caps under WCL Section 15(3)(w) were not running after the surgeries. The claimant’s representative argued that when the claimant was found to be at degrees of disability over the classification rate, the carrier was directed to pay awards to reflect the higher rates. Thus, the PPD caps were paused during those periods. The judge agreed with the claimant’s position, and also found that the claimant had a change in condition that constituted reclassification. On appeal, the board panel disagreed with the judge and found that the PPD caps had expired, as the extension of the PPD caps would be inconsistent with the legislative intent of the statute. Based on the board panel’s conclusion that the PPD caps ran out, it also concluded that the claimant’s application for reclassification under WCL Section 15 (6-a) was untimely, as it was not requested before the PPD caps expired.
The decision is relevant to claimants classified with PPDs and is beneficial to employers and carriers because it keeps the PPD caps running. In this case specifically, the decision was somewhat retroactive because the PPD caps already ran out before the application for reclassification was made. This is something carriers’ representatives should watch for, as there may be an opportunity to suspend benefits sooner and argue that the application for reclassification was made in an untimely manner.
Since this board panel decision was such a blow to the claimant in Jacobi Medical Center, it will likely go up on an additional appeal. The ultimate decision is one that all carriers will hope is not overturned. As the carriers wait for this decision’s affirmation, we can take advantage of this case law while it is still in effect. For a carrier’s representative, this case law can be used as a tool to push for file closure. If presented with a claim that meets the above mentioned criteria, this situation can also be used as leverage to reach a reasonable settlement between the parties.