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THE PERIODS OF TIME WHEN CLAIMANT WAS DEEMED TEMPORARILY PERMANENTLY DISABLED AFTER SURGERY SHOULD NOT HAVE BEEN COUNTED AGAINST THE 300-WEEK CAP FOR HIS PERMANENT PARTIAL DISABILITY BENEFITS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, reversing the Worker’s Compensation Board, determined the periods of time when claimant was deemed temporarily totally disabled following surgery should not have been counted against the 300-week cap for his permanent partial disability payments. The Third Department also held that a claimant need not seek reclassification before the exhaustion of the permanent partial disability award, as the Board had ruled:

We note that the WCLJs [Workers’ Compensation Law Judges] classified claimant as temporarily totally disabled following his two surgeries, which findings were supported by medical proof. Therefore, the Board did not comply with the statute when it counted the weeks during which claimant was classified as temporarily totally disabled against the cap for his nonschedule award for a permanent partial disability. Instead, the duration of his permanent partial disability nonschedule award (the running of the 300 weeks) should have been tolled while claimant was classified with a temporary total disability.  …

… [T]he durational benefit caps for nonschedule awards under Workers’ Compensation Law § 15 (3) (w) apply to “all compensation payable under this paragraph” … . However, benefits paid during a period of temporary total disability are payable under a separate paragraph, section 15 (2) … . * * * Accordingly, temporary total disability benefits do not count towards the benefit caps for nonschedule awards under Workers’ Compensation Law § 15 (3) (w). Matter of Sanchez v Jacobi Med. Ctr., 2020 NY Slip Op 01235, Third Dept 2-20-20

 

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