How Change in Conditions for Classified Claimants Changed Drastically

Matter of Jacobi is a case that drastically altered how change in conditions for classified claimants are handled.  If you recall, for a period of time once a claimant was classified their rate didn’t change to total – even if their doctor said they were totally disabled, or had a surgery.  We all rejoiced, but the Third Department ruined our joy when they decided Sanchez v Jacobi Medical Center on February 20, 2020 and stated that claimants could be Temporarily Totally Disabled, Permanently Partially Disabled, and possibly all matter of in-between.

The Board however limited this holding by consistently finding that Matter of Jacobi, only stands for the proposition that a claimant who has been classified as permanently partially disabled is entitled to benefits at a temporary total disability rate following causally-related surgery.”  (NYS Dept of Motor Vehicles, 50101459 NYS Wrk Comp 2020).  The Board specifically noted that Jacobi does not apply where the change is not due to surgery.  (Fahs Construction Corp, 2020 NY Wrk Comp G0055809).  For example, an exacerbation or a fall does not entitle a claimant to a period of temporary total disability.

Using that same logic, the Board reversed a finding of total disability in Employer: CVS.  (49903741 NY Wrk Comp 2020).  In that claim the claimant was classified with a permanent partial disability, and subsequently underwent a surgery.  The Board found that following the initial period from the surgery, “the record contained insufficient evidence to show that the claimant has low back disability greater than that which he had at the time of the . . . PPD finding.  Specifically, neither physician has explained a basis under the Board’s Guidelines for Determining Permanent Impairment, with consideration to the claimant’s permanent disability at the time of the prior PPD finding as compared to the claimant’s present physical condition and disability.”  The Board specifically noted that evidence of this change was the “claimant’s burden.”  The Board noted that the claimant must provider evidence of the change in condition.  (Id.).

The Board has also consistently found post-Jacobi that an opinion of total from a doctor’s office post-surgery is meaningless when the doctor continuously opined that the claimant was totally disabled from all employment despite Board decisions to the contrary in the files.  For example, in Ellicott Development, the treating doctor always opined throughout the file that the claimant was totally disabled from all employment.  The Board discussed that the Reserved Decision finding that the uncontroverted opinion of total from that treating was not sufficient to keep the claimant at a total disability for more than a post-surgical period because it was not credible evidence of post-surgery total disability.  (2020 NY Wrk Com G0365096).

Similarly, in Buffalo Psychiatric Center, the Board found that for a brief period following surgery the claimant was totally disabled per the medical opinion, but that upon her return to symptomatic treatment the claimant had a less than total disability despite Dr. Roger’s continued and uncontroverted opinion that the claimant has a total disability.  (2020 NY Wrk Comp G0363881]).

Here, the treating doctors opined a total disability throughout the period the claimant was classified and paid with a permanent partial disability.  The treating doctor’s office opined a total disability in 2014 and the issue of whether the claimant should be reclassified to a permanent total disability was litigated and decided in a 2015 Reserved Decision.  The opinion of the treating doctor of a total disability is not sufficient to continue the awards at total, because the treating doctor’s opinion that the claimant is permanently totally disabled is well-known and unchanged from  before the prior litigation.

According to the claimant’s providers, he is actually better after the surgery than he was prior to the surgery when the 2015 Reserved Decision found there was no change in condition.  The Board has noted that when making this determination the opinion of the doctor, even if uncontroverted must be supported by substantial evidence.  (Bluepoint Concrete, 2020 NY Wrk Comp 40604317).  In Bluepoint, the Board found that the “sum of substance of the report [did] not demonstrate a TTD” despite the doctor’s uncontroverted opinion of TTD.

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