Beware of Tentative Rates and Evidence of Total Disability on Approach to Permanent Partial Disability Finding

From the desk of Attorney David L. Niefer

PRACTICE TIP:  When addressing labor market attachment at the time of permanency, avoid “tentative rates” in the presence of medical evidence of total disability.  Otherwise, the claimant can rely upon medical evidence of total disability to avoid the obligation to seek work.

In Bowers v. New York City Tr. Auth., 178 A.D.3d 1172 (3d Dept. 2019), the claimant injured her right shoulder and neck with awards made at a “tentative rate.”  Medical reports provided varying opinions including that of a permanent partial disability and a chiropractor’s opinion of a temporary total disability.  The Law Judge directed development of the record on the claimant’s obligation to establish an attachment to the labor market and permanency.  On review, a Board Panel affirmed the ruling of the Law Judge, but the Appellate Division reversed pointing out that awards made on a “tentative” basis, even if at a partial rate, do not provide the claimant sufficient notice that she has been deemed to be partially disabled and therefore obligated to seek employment.  Until such a definitive ruling is made, the claimant can rely upon a physician’s opinion that she is totally disabled and cannot work.

In response to Bowers, the Board has now created a bifurcated process at the time of permanency.  The parties must first develop the record on the claimant’s current level of disability to establish whether the claimant has a temporary partial or temporary total disability when that issue has yet to be resolved.  See, Catholic Charities Health Syst., WCB G1905182 (2/19/20).  If a finding of a temporary partial disability is made, then the claimant must demonstrate an attachment to the labor market at the time of permanency.  Conversely, if the claimant proves a temporary total level of disability, then there will be no obligation to seek employment prior to or at the time of a ruling on the claimant’s level of permanent disability.  In order to avoid the inefficiency of the bifurcated process, carriers should avoid awards implemented on a “tentative” basis resulting in development of the record on the issue of the claimant’s level of temporary disability.

If you have a complex claim involving a permanency/labor market attachment determination and would like our office to consider the evidentiary and other issues involved, contact David Niefer at (607) 723-0600 or any of the attorneys in our office.  If you would like a training session on this or any area of the Workers’ Compensation Law, please do not hesitate to contact our firm.


This information is provided for general guidance only.  This information should not be used as a substitute for consultation with legal counsel.  Each case presents unique facts requiring individual analysis.