Attorneys obtained a favorable decision from the State Appellate Division against petitioner’s claim of entitlement to temporary total disability benefits

Attorneys obtained a favorable decision from the State Appellate Division against petitioner’s claim of entitlement to temporary total disability benefits. The issue of entitlement to temporary total disability, following a period of being out of work, is a hotly contested issue within the Division. In the instant matter, petitioner appealed the decision of Judge of Compensation finding that she was not entitled to temporary total disability. While receiving authorized orthopedic treatment, petitioner was terminated from her employment in accordance with company policy that the job will not be held once an associate has been on an approved medical leave for a continuous twelve months. Although employment terminated, petitioner continued to receive temporary total disability benefits as she remained under authorized orthopedic treatment with no light duty position available. Four months later, petitioner was placed at maximum medical improvement as to the authorized orthopedic treatment. Accordingly, temporary total disability benefits ceased. Although petitioner was seeking psychiatric treatment, she did not have a medical opinion of inability to work at that time. Petitioner obtained a psychiatric opinion regarding need for treatment. However, the examiner did not render an opinion as to ability to work. It was not until approximately three months later that petitioner obtained an opinion of inability to work. During the period following orthopedic MMI with no medical opinion as to inability to work, petitioner failed to seek employment. Petitioner requested temporary total benefits in any event arguing that she was continuously unable to work psychiatrically. It was after three reports requested by petitioner of her psychiatric evaluator that she obtained an opinion of inability to work for the 6 months prior to the rendering of the report; the two sentence report was drafted the day prior to the return date of the motion. Respondent argued that the opinion was not credible or reliable, and that petitioner had no lost wages entitling her to temporary total disability prior to the psychiatric opinion of inability to work. The Judge of Compensation agreed and found that petitioner was not entitled to the benefits. The Appellate Division affirmed finding there to be substantial credible evidence in the record to support the determination of the Judge of Compensation. Furthermore, the Division reiterated that “the reason for separation from employment, if unrelated to the employment or disability, is not dispositive of the overriding issue – did the employee suffer a current wage loss?”