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Reversing a determination of the New York Workers’ Compensation Board — and perhaps even one of its own decisions — an upstate appellate panel has held that an employer is not entitled to credit for the payment of temporary disability benefits. The Appellate Division, Third Department, ruling in Matter of Fox v. Crosby-Brownlie Inc., 88561, topples a decision that would have limited a worker’s total award because he received temporary disability payments for several weeks. It held that despite its 1998 decision in Matter of Dinger v. K-Mart Corp., 246 AD2d 946, a carrier cannot claim a credit for the number of weeks an individual has been paid temporary disability benefits, but instead must calculate permanent benefits from the date of the injury. James R. Fox was partially disabled permanently. For younger workers in such cases, the Board first calculates the loss of wages over the worker’s entire life because of the disability by a set schedule. In this case, the Board began its calculation after the temporary disability benefits ended. The Third Department reversed. Matter of Fox is apparently a first-impression decision with significant ramifications in Workers’ Compensation. The case involves a man, Fox, who injured his finger in a work-related accident on Dec. 1, 1997. For a six-week period, he received Workers’ Compensation benefits at the partial disability rate. During that time, the issues of permanency and — because the claimant was under the age of 25 — wage expectancy remained open. Eventually, the Workers’ Compensation Board reclassified Fox as permanently partially disabled and held that the employer was entitled to a six-week credit for the period of temporary disability. That credit would have reduced Fox’s total award by roughly $1,200. The Board, in its ruling, relied primarily on Matter of Dinger, which involved a claim by an under age 25 claimant who had received a temporary total disability award for several months. In Dinger, the Third Department said the Board properly distinguished those time periods where the claimant was found to be temporarily disabled from those where he was deemed permanently partially disabled. It said that since future wage expectancy applies only to awards for permanent partial disability, there was no need to recalculate the entire award at the future wage expectancy rate from the date of injury. The Workers’ Compensation Board cited Dinger to limit the use of wage expectancy to calculating that part of the schedule award exceeding Fox’s temporary disability. But the court said that that approach “fails to take into account the well-settled differences between a schedule award and an award for temporary disability.” “In other words,” Justice Edward O. Spain wrote in summarizing the Board’s stance, “because the schedule award is based on the statutorily prescribed number of weeks from the date of injury and … claimant was classified as temporarily disabled for periods subsequent to the injury and prior to the permanent partial classification, as a practical matter the schedule award appears to have encompassed periods of temporary disability. To the extent that Dinger supported this aspect of the Board’s determination, we decline to follow it.” The panel also included Presiding Justice Anthony V. Cardona and Justices D. Bruce Crew III, Carl J. Mugglin and Robert S. Rose. “It is readily apparent that the loss of earning power of a claimant who is temporarily disabled as a result of an injury which is later classified as a permanent partial disability is neither greater nor less than the loss of earning power of a claimant with the same injury who is classified as permanently partially disabled as of the date of the injury,” Justice Spain wrote. Here, since a decline in earning power is not contingent on when a worker is classified as permanently disabled, there is no basis for depreciating the award under the schedule of a claimant whose disability was initially categorized as temporary, the court said. Thomas Ferrazzi Ferris of Segar & Sciortino, who argued for Fox, said the ruling will have a significant impact on the way New York State treats injured workers under the age of 25. “Fox seems to be suggesting that in those matters where carriers have paid temporary partial disability benefits, or anything less than total disability, the carrier may not deduct those weeks,” Ferris said. “I think carriers can still argue Dinger where they have paid temporary total disability benefits.” Paul Antonowicz of Hamberger & Weiss in Rochester appeared for Crosbie-Brownlie Inc.

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