From the Desk of Attorney David L. Niefer
PRACTICE TIP: If you are paying PPD non-schedule awards, those awards will terminate as of the date of death even if there are additional weeks owed under the statutory cap.
After the enactment of the statutory caps on PPD non-schedule awards, an issue remained unsettled whether the PPD awards would extend beyond the date of death. Both the WCB and the Appellate Division ruled that the additional posthumous weeks arising out of the statutory cap were owed to the claimant’s beneficiaries. In a decision dated 10/27/22, the Court of Appeals reversed, holding that there is no entitlement under the statute to non-schedule PPD awards beyond the date of death. Green v. Dutchess County BOCES, – NY3d – (2022). The Court of Appeals emphasized the difference between non-schedule awards and schedule awards. Thus, while SLU awards can be paid posthumously under appropriate circumstances, non-schedule awards cannot.
If you learn of the passing of the claimant, you should promptly suspend indemnity benefits even if there is a possibility that the death is causally related to the original work injury. Even if there is a separate claim for a causally related death, that claim represents a legally distinct claim which does not alter the carrier’s right to terminate indemnity awards under the lifetime case upon claimant’s passing. Moreover, if a deposit was made into the Aggregate Trust Fund at the time of classification, the carrier should promptly seek a refund from the ATF for any portion of the deposit representing the remaining weeks under the statutory cap.
