August 2020 Newletter
Matter of Sanchez vs. Jacobi Med Ctr., 118 N.Y.S.3d 792 (3rd Dept. Feb. 20, 2020)
Issue: Permanent partial disability cap
Facts: The issue here was whether all awards after a Claimant is classified with a permanent partial disability count towards the cap under WCL Section 15(3)(w). A full Board panel decision had held that all periods following classification would count towards the cap regardless of whether there were periods of temporary total disability. Additionally, the panel ruled that the Claimant’s request for reclassification was untimely as the 300 week cap had been exhausted. The matter was appealed to the Third Department .
Decision: The Court reversed the full Board panel decision. The Court noted that prior to the Jacobi case, periods of temporary total disability had not counted against the cap. The Court was not persuaded by the Board’s explanation for its change in position as it did not comport with the plain language of WCL Section 15(3)(w).
Comment: The decision is a return to the previous manner in which temporary total periods following classification were handled. The cap will be tolled for periods where a claimant is temporarily totally disabled, most likely when a claimant undergoes surgery. There have been some cases affected by the Jacobi ruling and it is expected that claimants will seek to have permanent disability caps tolled in accordance with the 3rd Department ruling.
Matter of Green vs. Dutchess County BOCES, 2020 N.Y. App. Div. LEXIS 1569 (3rd Dept. Mar. 5, 2020)
Issue: Posthumous award for permanent disability following Claimant’s death.
Facts: The Claimant suffered an injury to his right leg and was classified with a permanent partial disability with a 51% LWEC entitling him to receive 350 weeks of benefits. The Claimant continued working after classification and was receiving reduced earnings benefits at the time of his death. The cause of death was not related to the WC claim. The Board held that the Claimant’s surviving child was not entitled to the remaining 38.8 weeks from the cap because the injury was a nonscheduled permanent partial disability award. The Board reasoned that the decedent, upon his death, no longer had causally related lost time or future earnings to lose.
Decision: The Court reversed the Board’s decision. The Court noted that the plain language of WCL Section 15(4) did not distinguish SLU awards from nonscheduled permanent partial disability awards. Therefore the legislature intended them to be treated the same. To do otherwise would create a “disparity between the two classes of beneficiaries receiving permanent partial disability compensation. Further, the recent amendments to the WC law which imposed a durational limit upon PPD claims, made the PPD benefits comparable to SLU awards. Accordingly, the remaining cap weeks were owed to the Claimant’s beneficiary.
Comment: The circumstances where a claimant with a permanent partial disability dies before the cap is exhausted will certainly be common than one in which a claimant dies before an SLU award is paid. With older claimants there may be less incentive for them to enter into a Section 32 if they are not worried about the cap expiring upon their death.
Further, it is not clear from the ruling how the remainder of the cap should be paid and whether there would be a discount for present value if paid as a lump sum. We should have guidance on this issue soon.
Matter of Blair v Suny Syracuse Hosp., 2020 N.Y. App. Div. LEXIS 3266 (3rd Dep’t, Jun. 4, 2020)
Issue: Schedule loss of use.
Facts: The Claimant had been awarded a 25% SLU of the right arm following a 1995 work-related right elbow injury. In 2017 he suffered a work-related right shoulder injury that resulted in surgery. Per an IME, he was found to have a 45% SLU of the right arm. However, the WCLJ deducted the prior 25% SLU and awarded a 20% SLU. The Board affirmed the decision. The Claimant appealed, arguing that the prior SLU was related to the right elbow only and should not have been deducted from the shoulder SLU.
Decision: The Court upheld the Board’s decision. The Court noted that the Permanent Impairment Guidelines did not set forth separate SLU awards for the elbow or shoulder. As the Claimant had been awarded a prior SLU for the right arm, it was proper for the Board to deduct it from a later SLU involving the same arm.
Comment: This illustrates the importance of obtaining a full picture of the Claimant’s prior medical history. With the steady increase in value of SLU awards, this is one instance where the outcome favors the carriers.