H&W Publishes White Paper on Coronavirus and New York Workers' Compensation
Many of our clients have had questions regarding the novel coronavirus (COVID-19) and whether the contracture of COVID-19 by an employee is compensable in New York State. Yesterday, we published awhite paper that provides an analysis of relevant case law and Board decisions to assist in determining whether or not to controvert a claim for COVID-19, or whether, once controverted, a claim is likely to be established or disallowed. Our paper also provides recommendations should you receive a such a claim, and links for instruction on preventative measures.Our white paper is available for download here. For any questions or concerns on this topic, please do not hesitate to contact our partnersMelanie M. Wojcik at (716) 854-1539 or David L. Snyder at (585) 568-8314.
Appellate Division Allows PPD Award to Continue After Death
|On 3/5/20 the Appellate Division, Third Department decided Green v. Dutchess County BOCES. In what can only be described as an astonishing decision, the court held that when a claimant with a capped permanent partial disability (“PPD”) dies for reasons unrelated to established injuries, any remaining weeks on the PPD cap are payable to the deceased claimant’s surviving relatives enumerated in WCL §15(4). We believe this decision is wrongly decided and fails to apply long-standing precedent requiring causally related lost time / lost wages as a prerequisite to permanent partial disability awards.|
In this case, the deceased claimant had 38.8 weeks remaining on his PPD cap at the time of death. The deceased claimant’s son requested payment of those remaining 38.8 weeks. The Board held that the death resulted from non-causally related reasons, and that no permanent partial disability awards were payable after the date of death because the claim had abated. Claimant’s son appealed to the Appellate Division, arguing that the remaining weeks were payable pursuant to WCL § 15(4).
The relevant portion of WCL §15(4) states, "an award made to a claimant under subdivision three shall in case of death arising from causes other than the injury be payable to and for the benefit of [enumerated surviving relatives]." The court’s decision states, "Until now, we have not had the occasion to address whether any remaining portion or weeks of a nonscheduled permanent partial disability award is payable to the beneficiaries identified in [§15(4)] upon a claimant's death arising from causes other than the [established] injury." (internal quote marks omitted).
The court stated, "[§15(4)] neither distinguishes SLU awards from nonscheduled permanent partial disability awards, nor contains any limiting language excepting nonscheduled permanent partial disability awards from its scope." The court rejected the notion that upon a non-causally related death, there is no longer a causally-related reduction in wages attributable the nonscheduled permanent partial disability.
We believe the court’s decision fails to correctly interpret the crucial word, “award,” in §15(4). For PPD claims, there can be no "award" of indemnity benefits without causally related lost time / lost wages. If there is no “award” then there is nothing to pay out under §15(4). The court’s decision appears to assume that capped permanent partial disability awards automatically become payable at the time of classification, which has simply never been the case.
Over the years, the Appellate Division, and New York’s highest appellate court, the Court of Appeals, have issued many decisions stating that a claimant cannot receive indemnity awards in non-SLU cases for periods of lost time / lost wages that are not causally related to the established injury. See e.g.. Zamora v. New York Neurologic Assoc., 19 N.Y.3d 186 (2012); Burns v. Varriale, 9 N.Y.3d 207 (2007); Florentino v. Mount Sinai Medical Center, 126 A.D.3d 1279 (3d Dept., 2015); German v. Target Corp., 77 A.D.3d 1126 (3d Dept., 2010); Thompson v. Saucke Brothers Construction, Inc., 2 A.D. 3d 993 (3d Dept., 2003); Turetzky-Santaniello v. Vassar Brothers Hospital, 302 A.D. 2d 706 (3d Dept., 2003); Tisko v. General Aniline & Film Corp., 27 A.D.2d 619 (3d Dept., 1966); Roberts v. General Electric Company, 6 A.D.2d 43 (3d Dept.,1958).
Unlike schedule of loss of use awards, which are payable regardless of whether the claimant has any lost time or lost wages, permanent partial disability awards have always been contingent on the claimant having lost time or lost wages causally related to an established injury. Even when a permanent partial disability award is under a direction for a carrier/employer to continue payment pursuant to Rule 300.23(c), such a direction does not mandate that the Board direct “awards” after a claimant’s death (in the absence of an established death claim). Rather, in the absence of an established death claim, the non-causally related death of a claimant has always been considered an ultimate and final severance of the causal nexus between the established work injuries and lost time/lost wages.
In support of its holding rejecting the requirement for causally related lost time/lost wages, the court highlighted a series of Board Panel decision's describing capped PPD awards as a "real benefit that vests with [a] worker upon classification." (Internal quote marks omitted). However, the manner in which the Board characterizes capped PPD awards in Board Panel decisions does not overrule well-established Court of Appeals and Appellate Division case law requiring causally related lost time / lost wages to support permanent partial disability "awards." Astonishingly, the court’s decision does not cite, or in any way attempt to distinguish, any of its previous decisions referenced above, or the Court of Appeals’ decisions. The last several paragraphs of its decision suggest that the court's holding is based on a desire to avoid perpetuating what it perceives as unfair distinctions between schedule of loss of use and permanent partial disability awards, which it states the legislature aimed to eliminate with the 2007 statutory revisions. In support of this reasoning, the court cites language from the Court of Appeals’ decision in Mancini v. Office of Children and Family Services, stating that the 2007 statutory revision creating capped PPD awards modified PPD awards to be similar to schedule loss of use awards. While this is true in a general sense, the statutory revisions did not do away with the requirement for causally related lost time/lost wages for permanent partial disability awards, and until now, no legal authority has suggested that this requirement no longer exists. The only similarity between capped PPDs and schedule loss of use awards is that each uses a statutorily defined number of weeks. The legal eligibility requirements for PPD and SLU awards has always differed, and the body of case law surrounding these two types of awards acknowledges those differences. When the superficial layer of similarity is peeled back, capped PPD and SLU awards differ in significant substantive ways. It appears the court has mistaken a superficial similarity as a legislative mandate for wholesale judicial revision of the law governing a claimant’s eligibility for PPD awards.
The court’s decision includes language suggesting that a claimant's eligibility for permanent partial disability awards results from the mere act of classification with a permanent partial disability combined with the finding of a wage-earning capacity/loss of wage earning capacity. However, this is inconsistent with previous decisions from the court stating that the loss of wage earning capacity sets the duration of the cap for PPD awards, and that the wage earning capacity (as opposed to the loss of wage earning capacity) is a number which is used to determine the payment rate for non-working claimants. Rosales v. Eugene J. Felice Landscaping, 144 A.D.3d 1206, (3d Dep’t 2016); Till v. Apex Rehabilitation, 144 A.D.3d 1231 (3d Dep’t 2016). A non-waivable prerequisite for PPD awards has always been causally related lost time or lost wages.
It remains to be seen whether the self-insured employer in this case will seek leave to appeal to the Court of Appeals.
Appellate Division Reverses Board's Jacobi Decision
On 02/20/2020, the Appellate Division, in Sanchez v. Jacobi Medical Center
, reversed the Board's decision from a little over a year ago (Jacobi Medical Center
, WCB #00825967 (02/11/2019)), which ruled that post-classification awards at total count towards the cap on permanent partial disability benefits. Jacobi
was a favorable Board Panel decision for the defense bar because it allowed us to argue that awards following the claimant's classification with a permanent partial disability should be limited to the permanent partial disability rate and also argue that such awards always be subject to the cap on permanent partial disability benefits under WCL §15(3)(w).
, the court noted that WCL §15 allows the claimant to be classified under one and only one of the four categories of disability (permanent total, temporary total, permanent partial, or temporary partial) at any given time. The court felt that the Legislature's silence on whether non-schedule awards for permanent partial disability should include preceding or intervening periods of temporary total disability was a purposeful legislative choice to not include any periods of temporary total disability in non-schedule awards. Accordingly, the court felt that the Board in Jacobi
should have ruled that the duration of the claimant's permanent partial disability non-schedule award should have been tolled during the post classification award of temporary total disability benefits. The court also held that awards for temporary total disability after a PPD classification should be at the total rate.
This decision leaves us with two rules moving forward: 1) post classification awards of temporary total disability do not count against the claimant's durational limit (cap) on permanent partial disabilities for awards on cases with a date of injury before 4/10/2017 and 2) the claimant can apply for reclassification of his or her disability status at any time.
Parenthetically, we note that it is our belief that the court’s decision does not impact the interpretation of the credit for temporary partial disability awards created for claims with dates of accident on and after 4/10/17 in WCL section 15(3)(w). Pursuant to the plain language of that statutory provision, all temporary partial disability awards made after 130 weeks of temporary partial payments in post-4/10/17 claims should be subject to a credit against the PPD cap.
Court Affirms in Three Decisions the Taher Rule that Claimant May Receive Both SLU and PPD in the Same Case at the Same Time
On 2/27/20 the Appellate Division, Third Department, decided Arias v. City of New York
, Saputo v. Newsday LLC
, and Fernandez v. New York University Benefits
. These decisions squarely hold that the Court’s previous decision in Taher v. Yiota Taxi
is controlling, and that a claimant may receive both a schedule loss of use award and a permanent partial disability classification in the same case at the same time. It is unclear as of this writing if this decision will be appealed to New York’s highest appellate court, the New York Court of Appeals.
After the Appellate Division issued its previous decision in Taher
, the Board and the workers’ compensation defense bar both took the position that it was incorrectly decided and should not be followed. The Court’s new decisions in Arias
, and Fernandez
. reject that argument. In particular, the Court rejected the argument that the 2018 schedule loss of use guidelines warrant departure from the Taher
decision. The Court stated that language in the 2018 schedule loss of use guidelines requiring no residual impairment in the systemic area of the injury before a schedule of loss of use award can be made is ambiguous and therefore does not automatically require one form of permanent disability finding over another.
The take away from these decisions is that, for the time being, unless the New York Court of Appeals reverses them, claimants may receive both a schedule of loss of use award and a permanent partial disability classification in the same case at the same time, and may receive a lump-sum schedule loss of use award payment as long as they are not losing time or wages from work.
Court Rules that Reduction of Employer Reimbursement to Cover Attorney Fee in SLU Award Improper Because It Resulted in Windfall to Claimant
In Enoch v. New York State Department of Corrections and Community Supervision
, decided by the Appellate Division, Third Department, on 1/30/2020, the Court ruled that the Board correctly allowed a carrier to reduce a claimant's schedule loss of use award by the amount of outstanding employer reimbursement remaining where there was sufficient money moving on the SLU to pay for both the claimant's attorney's fee and provide for the remaining reimbursement.
The court stated that “Continuing to reduce the employer's reimbursement credit by the counsel fee award after claimant received his schedule loss of use award would result in a windfall to claimant, essentially making the employer subsidize a portion of claimant's legal expenses."
The claimant in Enoch
injured his right knee during a training activity and filed a workers’ compensation claim. While he was off work, the employer paid the claimant his regular wages and filed a claim for reimbursement of those wages with the Board. In 2017, the Board awarded the claimant benefits payable as a credit to the employer to partially reimburse it for the wages paid. The claimant's attorney was paid $700 as a lien on the employer's wage reimbursement credit.
A workers’ compensation law judge ("WCLJ") found that the claimant had a 20% schedule loss of use ("SLU") of the right leg and directed reimbursement to the employer for remaining wage reimbursement request. The carrier filed an Application for Board Review because the WCLJ reduced the employer's reimbursement credit by the amount of the previous $700 attorney fee.
The Board ruled that the employer was entitled to full reimbursement of wages paid at the time of the SLU award without any reduction for attorney fees. The Board modified the WCLJ's decision by directing that the fee be paid out of the claimant's portion of the SLU award.
The Appellate Division reasoned that when the Board initially made the award of counsel fees payable as a lien on the claimant's reimbursement credit, he was receiving temporary total disability payments, and the employer's reimbursement credit was limited to the amount of the payments and at that time, the employer' wage reimbursement was the source from which the attorney could be paid.
Once the claimant was awarded a SLU, however, there were sufficient funds from which the employer could receive full reimbursement of the wages paid to the claimant during his period of disability, leaving him with an excess from which counsel fees could be paid.
This decision from the Appellate Division ensures that employers will be able to secure full reimbursement of wages paid in lieu of compensation in most cases.
Court Affirms Genduso Decision Holding that SLUs Reduced by SLU Award to Same Limb, Even if Different Part of Limb
On 2/6/2020, the Appellate Division, Third Department, decided Johnson v. City of New York
. This decision reaffirms the court’s previous holding in Genduso v. New York City Dept. of Education
(2018) that a claimant’s schedule loss of use award will be subject to an automatic deduction for previous schedule loss of use awards to the same limb (hand, foot, arm, leg, etc.). This decision also squarely holds that schedule loss of use awards are made only for the specific body members enumerated in the statute (WCL §15(3)(a) through (l)). This means that a claimant cannot receive separate schedule loss of use awards for sub-parts of the same body member, such as the knee and hip of the same leg. In cases where multiple sub-parts of the same body member are injured, the schedule loss of use award must be calculated only for the body member as a whole. That schedule loss of use award then is subject to an automatic deduction for any previous schedule loss of use awards to the same body member.
The facts in Johnson
involved a claimant with an overall 80% loss of use for his left leg and an overall 40% loss of use for his right leg based on hip and knee injuries. The Board deducted a previous 50% schedule loss of use award for the left leg and a previous 52.5% schedule loss of use award for the right leg. This resulted in a functional 30% loss of use payable for the left leg and a 0% loss of use payable for the right leg. Claimant appealed, and the court affirmed, citing Genduso
and Bell v. Glens Falls Ready Mix Co., Inc.
, holding that:
"SLU awards are . . . limited to only those statutorily-enumerated members listed in Workers’ Compensation Law §15(3) . . . In this regard, to authorize separate SLU awards for a body member’s sub-parts is not authorized by statute or the guidelines and would amount to a monetary windfall for a claimant that would compensate him or her beyond the degree of impairment actually sustained to the statutorily-enumerated body member." (Internal citations omitted)
The court also held that the Board properly deducted the previous schedule loss of use awards automatically from claimant’s overall schedule loss of use assessments.
decision shows that Genduso
is not an anomaly and will be applied by the court as controlling authority. The practical impact is that claimants can no longer receive separate schedule loss of use awards for multiple injuries to the same limb (knee and hip for the leg, shoulder and elbow for the arm, etc.). In such cases, the schedule loss of use would be payable only for a single leg or arm, respectively. Likewise, automatic deduction for previous schedule loss of use awards to the same body member applies even if the previous schedule loss of use award was for a different sub-part of that body member.
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