A work-related injury that prevents a claimant from working could qualify the claimant for awards at the temporary total disability (TTD) rate.  The claimant’s treating provider is expected to establish if the claimant is temporary totally disabled and should express his opinion in his medical reports.

Should the carrier disagree with the treating provider’s opinion the carrier can schedule an IME, in compliance with WCL § 137 and 12 NYCRR § 300.2, to reassess the claimant’s degree of disability.

Temporary total disability becomes especially relevant when the claimant suffered a schedulable injury.  WCL § 15 provides for an enhanced schedule loss of use award when the claimant’s temporary total period of disability exceeds that what is considered the normal healing period for the injury to the claimant’s body part.

Therefore, a determination of temporary total disability could have a significant impact on a claimant’s SLU award.  What is less clear is what the criteria for temporary total disability are?  Is it speculative and dependent on the treating provider’s subjective disposition?  Or, should there be demonstrable criteria that will guide the treating provider to an objective opinion that an IME, if requested, could confirm?

To be temporary “TOTALLY” disabled we picture a claimant in a wheelchair paralyzed and unable to function without assistance.  But, in reality the picture is frequently very different and often as follows:

The claimant jump up and made his way to the door of the court room.  He appeared healthy and happy.  There was no sign of any kind of impairment and we had to consult our file to reaffirm the injury.  On his C-3 the claimant claimed that a piece of steel fell on his right finger cutting it. The claimant only noted a right pointer finger injury.

However, on his C-3 a month later he alleged that a piece of steel fell, causing him to fall with it.  He not only stated that he cut his finger, he also alleged injuries to his lower back.

Without reference to any objective criteria or observations (in fact, X-rays were negative), but simply referring to and reiterating the claimant’s allegations as to his condition, the treating physician confirmed the claimant’s claim that he was temporary totally disabled.

As said above, the determination of temporary total disability falls for the most part, at least initially, within the province of the claimant’s treating provider.  However, there seems to be a lack of guidance and demonstrable formulated criteria to assist treating providers to objectively determine temporary total degree of disability, especially with regard to injuries to the extremities.

The 1996 Medical Impairment Guidelines provide objective criteria to assess a claimant’s degree of disability.  However, these guidelines focus on the assessment of degree of disability relative to back injuries.  Furthermore, the 1996 Guidelines were replaced by the 2012 Guidelines which went into effect on Januarys 2012.

The 2012 Guidelines provides criteria for the evaluation of permanent disabilities, but it does not refer to temporary disabilities.

In order to make a determination of total disability, Section “G” of the 1996 Medical Impairment Guidelines provides five additional objective criteria that should, over and above the criteria used to evaluate marked partial disability, be present.  The criteria for total disability include:  1) Use of an assistive device to ambulate for more than two years duration;  2) Needs assistance to undress or disrobe and unable to get up to the examination table without assistance;  3) Needs assistance to perform activities of daily living such as self-care, personal hygiene and transportation;  4) Severe neurological deficit such as marked muscle weakness, paraplegia, and paraparesis;  5) Disturbance of bladder, bowel and/or sexual function.  See, Medical Guidelines June 1996 p. 27.

It is well established that differing medical opinions is a matter that is within the New York Workers’ Compensation Board’s discretion to resolve. See <u>Matter of Raffiani v. Allied Sys</u>., Ltd., 27 A.D.3d 983 (2006)  and <u>Ciafone v. Consolidated Edison of N.Y</u>., 54 A.D.3d 1135 (3<sup>rd</sup> Dept. 2008).

In <u>Medicab/Rochester Inc.</u> the Board Panel, confronted with contrasting medical opinions, considered the 1996 Medical Impairment Guidelines to evaluate degree of disability finding that the claimant did not in fact had a temporary total degree of disability, but a temporary partial disability. <u>Medicab/Rochester Inc., </u>2015 NY Wrk Comp. 0990585.

In another recent Full Board Review, the claimant’s chiropractor continued to opine a TTD.  However, he testified that the claimant did not require an assistance device to walk, did not need assistance to get on the examination table and he had no knowledge of any bladder, bowel or sexual dysfunction.  No issues with the claimant’s ability to sit, walk or perform daily activities such as driving, cooking, cleaning or personal hygiene was indicated.  Consequently, the Board found that the claimant was not temporary totally disabled. <u>Matter of Our Lady of Victory Baker,</u> 2015 NY Wrk. Comp. 0730636.

In <u>Wakefern Food Corp NY</u>, the Board found that the claimant’s provider admitted under testimony that she “elicited inadequate and/or limited information from the claimant in reference to whether the claimant satisfies several of the criteria for a total disability finding as set forth in the Board’s 1996 Medical Guidelines.” As a result the Board found her testimony of temporary total disability unpersuasive. <u>Wakefern Food Corp NY,</u> 2015 NY Wrk. Comp. 30505506.

All the case law referenced above involved claims with back injuries.  Would it not be more efficient if there were definite criteria for treating providers to use to determine temporary degree of disability, especially where injuries could result in SLU awards?  Medical opinions based on objective criteria could significantly reduce the amount of independent medical examinations and subsequent litigation on degree of disability.

Therefore, medical providers are advised to objectively evaluate their patients and, according to the NY Workers’ Compensation Board website, continue to determine temporary disability as they have done before the implementation of the 2012 Guidelines.