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Posthumous PPD/LWEC Award

Workers’ Compensation Law § 15[4] has long been the basis for posthumous schedule loss of use awards. But it has not been used as the basis for posthumous non-schedule awards – until now.

In Matter of Green v Dutchess County Boces (529624, 2020 WL 1056237 [3d Dept Mar. 5, 2020]) the Appellate Division, Third Department considered the claim of the survivors Eric Watson. Watson sustained a work-related injury to his right leg and was ultimately awarded a permanent partial disability with a 51% loss of wage-earning capacity, entitling him to wage-loss benefits not to exceed 350 weeks pursuant to Workers’ Compensation Law § 15[3][w]. He died for reasons unrelated to work injury 311.2 weeks later.

Thereafter, a claim was made that the remaining balance of 38.8 weeks of compensation be paid to his surviving child pursuant to Workers’ Compensation Law § 15[4][c]. The Workers’ Compensation Board denied the claimant. Claimant appealed.

After examining the statute, the Court ruled that Workers’ Compensation Law § 15[4] does not between schedule awards (WCL § 15[3] [a-u]) and non-schedule awards (WCL § 15[3][w]). The case was returned to the Board for “further proceedings not inconsistent with this Court’s decision”. Presumably, the Board is to award the remaining balance of 38.8 weeks of compensation to Watson’s surviving child.

Watson was receiving compensation for reduced earnings at the time of his death, so the lingering effects of his work injury were quantified. But what if he had been working and earning at or above his pre-injury wages? Would his survivors still be entitled to a posthumous award? What if he had sustained both schedule and non-schedule injuries, was awarded a schedule loss of use and a non-schedule loss of wage-earning capacity and was paid the schedule loss of use because he was working and earning at or above his pre-injury wages at the time of classification? Would his survivors then be entitled to payment of the difference between the capped weeks of compensation associated with his LWEC and the amount of the previously paid SLU? At what rate?

These questions were not before the Court. But the following passage, near the end of the decision, may foreshadow how the Court would rule:

“Moreover, if an injured worker dies without any reduced earnings, or while at preinjury wages, his or her surviving spouse and/or children would forever be deprived of any benefits because the deceased worker never sustained, and could no longer establish, a causally-related reduction in wages”

One thing is certain – New York workers compensation claims are now more expensive for employers than they were on March 4.

Contact us if one of these claims crosses your desk.

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