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Bill Passed by Legislature Would Change Definition of Temporary Total Disability to Focus on Claimant’s At-Injury Job

A bill amending the definition of temporary total disability in the New York Workers’ Compensation Law has passed both the Senate and the Assembly and now needs only Governor Hochul’s signature to become law. The bill modifies Section 15(2) of the Workers’ Compensation Law to define temporary total disability as “the injured employee’s inability to perform his or her pre-injury employment duties or any modified employment offered by the employer that is consistent with the employee’s disability.” Presently, temporary total disability in New York is not defined by the statute. In the absence of statutory guidance, caselaw and Board policy require that a temporary total disability finding be based on medical evidence showing a claimant’s inability to perform any type of employment, not just the claimant’s pre-injury or at-injury job.
The revised definition of temporary total disability in the bill may effectively eliminate both temporary partial disability awards and the attachment to the labor market defense. Traditionally, assessments of temporary disability were made by physicians and the determination of the degree of disability was based on the Board’s evaluation of the opinions given by the medical experts in each case. A claimant’s inability to return to his or her pre-injury employment is not necessarily a medical determination. Should this bill become law, even claimants who retain significant work capacity, but are found to be unable to return to their pre-injury employment or modified work by the employer, may receive temporary total disability benefits. Such claimants will be treated as having a total disability regardless of the degree of disability opined by their own physicians. This will give injured workers little incentive to attempt to return to work. Even a claimant who has as little as a 5% degree of disability will be allowed to receive temporary total disability awards so long as they are unable to perform all of their pre-injury employment duties.
We predict that this bill will significantly reduce the application of the attachment to the labor market defense. Recall that a claimant is only required to demonstrate attachment to the labor market if that claimant is under a partial disability. Should this bill become law, for the reasons noted above, it will be easier for a claimant to remain on temporary total disability status. Even if a claimant’s own physician opines that the claimant has a significant work capacity, so long as the claimant is unable to perform his or her pre-injury employment duties, the claimant will still be deemed temporarily totally disabled and will not be required to look for work. 
Another consequence of the bill is that it will increase the protracted healing period for schedule loss of use awards. Given the ease with which a claimant can maintain temporary total disability status under the definition provided in this bill, we expect that claimants will easily exceed the protracted healing periods set out in the statute. This will result in significant increases in schedule loss of use awards, due to the additional award for protracted healing, at permanency.
Most concerning is this bill’s potential to eliminate the permanent partial disability caps in WCL §15(3). Although this bill purports to modify only the definition of temporary total disability under WCL §15(2), recall that the Appellate Division in Sanchez v. Jacobi Medical Center, 182 A.D.3d 121 (3d Dep’t 2020) ruled that in the case of a claimant who is classified with a permanent partial disability and is later found to have a temporary total disability, the earlier permanent partial disability classification is set aside and the durational limit (or “cap”) of that permanent partial disability is tolled while the claimant is receiving temporary total disability benefits. Thus, under this new definition of temporary total disability, permanently partially disabled claimants could potentially receive temporary total disability benefits indefinitely so long as they are “unable” to return to their at-injury job. 
Finally, the proposed bill will increase litigation costs for employers and carriers. Since the determination of total disability is no longer solely a medical question, parties will want to take testimony from the claimant and employer witnesses to determine the claimant’s at-injury job duties and the claimant’s ability to perform them, not to mention whether an offer of modified duties is consistent with the disability.  Because the question of total disability is now specific to each claimant’s unique circumstances, this bill will also increase the need for physician depositions. Parties to a case will want to cross-examine the physicians on the claimant’s ability to return to work to that claimant’s specific job, or to any modified job offered by the employer. 
We recommend that, should this bill be signed by the governor, that employers make every effort to return claimants to light duty work consistent with work restrictions assigned by their physicians. We would also recommend that carriers and administrators work with employers to obtain detailed descriptions of the physical requirements of a claimant’s at-injury job at the beginning of a claim as this evidence will be needed in determining total disability throughout the case. 
The remaining steps for this bill to become law are delivery to the governor by the legislature and signing of the bill by the governor. It is possible that the governor could insist on chapter amendments to the bill prior to signature or even veto the bill entirely.
Please feel free to contact our partner Ron Weiss with any questions about this topic.

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