NYS Department of Transportation (WCB # 9020 4441; July 26, 2019)

Issue:  Post Jacobi and whether awards at the classification rate can be modified

Facts:  This is a non-capped claim with an 8/16/02 date of injury.  The Claimant was classified with a 66 2/3rd permanent partial disability (PPD).  Per the Notice of Decision filed 2/9/08, continuing awards were directed at the corresponding weekly rate of $335.25.  The Claimant underwent causally related surgery on 5/14/14.  Per a Notice of Decision filed 9/17/14 the Self-Insured Employer agreed to increase awards at the temporary total rate as of the surgery date.

In light of the WCB’s determination in Jacobi Medical Center (WCB # 0082 5967; February 11, 2019) the SIE filed an application on 3/25/19 to retro-actively reduce awards to the PPD rate of $335.25.  The Claimant in turn requested a change in condition in light of the surgery.

Decision: The WCB found that all awards made before 3/25/19 would not be disturbed because the Self-Insured Employer had failed to preserve its right to appeal.  Previously continuing awards were made $335.25 on a tentative basis pending litigation regarding a change in the Claimant’s condition.

Comment: In our world, everyone had been elated with the analysis set forth in Jacobi.  Mainly subsequent periods of temporary total benefits do count against the weekly durational cap on benefits (although the NYS Dept. of Transportation case was a “non-capped” case).  Additionally, the awards remain payable at the PPD classification rate despite periods of temporary total post-operative disability.

This case is important because it illustrates how a change in condition can modify the classification rate.  We need to be mindful of this decision moving forward.