PRACTICE TIP:  In order to limit additional indemnity awards, do not let a prior PPD ruling prevent ongoing claim administration.


The New York State Appellate Division has affirmed a ruling of the WCB holding that injured workers are entitled to indemnity awards post-cap when causally related surgery results in temporary disability.  In the case of Jennings v. Stop & Shop, 122 NYWCLR 195 (11/17/22), the claimant argued in favor of post-cap indemnity awards as a result of cervical spine surgery.  The carrier argued that the provisions of Section 15(3)(w) preclude indemnity awards when the statutory cap has expired.  On review, the Appellate Division affirmed the ruling below and held that benefits for post-surgery temporary total disability are payable under Section 15(2) and therefore not subject to the cap on PPD awards found at Section 15(3)(w).  The Appellate Division recognized that when the Board awarded post-surgery temporary total benefits, the previous PPD determination was effectively “displaced, until further re-classification.”  (Citing Sanchez v. Jacobi Med. Ctr., 182 A.D.3d 125.)


When confronted with a request for surgery, either prior to the expiration of the statutory cap or after the expiration of the statutory cap, carriers should administer the claim on the assumption that the claimant will need to be re-classified at a later date.  Thus, timely IMEs and requests for reductions in indemnity benefits are critical as the statutory cap will not limit indemnity awards until such time as the claimant is re-classified.


If you have any questions about this or any other issue, contact David L. Niefer at or (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.