Appellate Division Reverses Board's Jacobi Decision
On 02/20/2020, the Appellate Division, in Sanchez v. Jacobi Medical Center, reversed the Board's decision from a little over a year ago (Jacobi Medical Center, WCB #00825967 (02/11/2019)), which ruled that post-classification awards at total count towards the cap on permanent partial disability benefits. Jacobi was a favorable Board Panel decision for the defense bar because it allowed us to argue that awards following the claimant's classification with a permanent partial disability should be limited to the permanent partial disability rate and also argue that such awards always be subject to the cap on permanent partial disability benefits under WCL §15(3)(w).
In Sanchez, the court noted that WCL §15 allows the claimant to be classified under one and only one of the four categories of disability (permanent total, temporary total, permanent partial, or temporary partial) at any given time. The court felt that the Legislature's silence on whether non-schedule awards for permanent partial disability should include preceding or intervening periods of temporary total disability was a purposeful legislative choice to not include any periods of temporary total disability in non-schedule awards. Accordingly, the court felt that the Board in Jacobi should have ruled that the duration of the claimant's permanent partial disability non-schedule award should have been tolled during the post classification award of temporary total disability benefits. The court also held that awards for temporary total disability after a PPD classification should be at the total rate.
This decision leaves us with two rules moving forward: 1) post classification awards of temporary total disability do not count against the claimant's durational limit (cap) on permanent partial disabilities for awards on cases with a date of injury before 4/10/2017 and 2) the claimant can apply for reclassification of his or her disability status at any time.
Parenthetically, we note that it is our belief that the court’s decision does not impact the interpretation of the credit for temporary partial disability awards created for claims with dates of accident on and after 4/10/17 in WCL section 15(3)(w). Pursuant to the plain language of that statutory provision, all temporary partial disability awards made after 130 weeks of temporary partial payments in post-4/10/17 claims should be subject to a credit against the PPD cap.