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.