Citation Numbers: 134 A.D.3d 1364, 22 N.Y.S.3d 257
Judges: Lynch
Filed Date: 12/24/2015
Status: Precedential
Modified Date: 10/19/2024
Appeal from a decision of the Workers’ Compensation Board, filed February 14, 2014, which ruled that claimant was entitled to a schedule loss of use award payable in a lump sum.
Claimant, while employed as a tree service worker for the employer, filed a claim for a back injury in 2005 for which he was awarded compensation. It was ultimately determined in 2009 that he had a resulting permanent partial disability for which he thereafter received continuing disability benefits. Claimant also filed a claim in 2007 for work-related bilateral carpel tunnel syndrome, which was established as an oc
We affirm. The Board correctly held that Workers’ Compensation Law §§ 15 (3) (u) and 25 (1) (b), as amended in 2009 (see L 2009, ch 351, §§ 1, 2), authorize the payment of the schedule loss of use award in a lump sum. The purpose of a schedule loss of use award for a permanent partial disability is “to compensate for loss of earning power” (Matter of LaCroix v Syracuse Exec. Air Serv., Inc., 8 NY3d 348, 353 [2007] [internal quotation marks and citation omitted]). That is, it “is not given for an injury, but for the residual physical and functional impairments” (Matter of Empara v New Rochelle Sch. Dist., 130 AD3d 1127, 1129 [2015], lv denied 26 NY3d 911 [2015]). Whether a schedule loss award or continuing disability benefits is warranted is a question of fact for the Board to resolve (see id.), and the parties do not dispute the propriety here of a schedule loss award, which is allowed where “there is no continuing need for medical treatment and the medical condition is essentially stable” (Matter of Levitsky v Garden Time,
Under established precedent, where an injured worker is receiving nonscheduled award payments and periodic schedule loss of use award payments for different injuries, the concurrent payments may not exceed the statutory cap of $400 per week in benefits, as provided by Workers’ Compensation Law § 15 (6) (a) (see Matter of Schmidt v Falls Dodge, Inc., 19 NY3d 178, 183 [2012]; Matter of Sciame v Airborne Express, Inc., 101 AD3d 1419, 1420 [2012], lv denied 20 NY3d 860 [2013]). As relevant here, however, under Workers’ Compensation Law §§ 15 (3) (u) and 25 (1) (b), as amended in 2009, where there is a permanent partial loss of use of more than one member or body part, the award “shall be fully payable in one lump sum upon the request of the injured employee” (Workers’ Compensation Law § 15 [3] [u]).
In view of the foregoing, we find that the Board correctly ordered the schedule loss of use award to be paid in a lump sum as an authorized alternative to periodic payments, which did not violate the maximum disability rate provisions of Workers’ Compensation Law § 15 (6). Contrary to the carrier’s argument, in Matter of Schmidt v Falls Dodge, Inc. (19 NY3d at 183), the Court of Appeals expressly declined to address the implications of the 2009 amendments, and nothing in that
Garry, J.P., Rose, Devine and Clark, JJ., concur. Ordered that the decision is affirmed, without costs.
. That figure was arrived at by multiplying the loss of use percentage by the number of weeks of compensation payable for the loss of each hand (15% x 244 weeks for each hand equals 36.6 weeks for each hand, or 73.2 weeks for both hands) (see Workers’ Compensation Law § 15 [3] [c], [s]), and multiplying that number of weeks by the maximum weekly compensation allowed, $400 per week (see Workers’ Compensation Law § 15 [6]), for a total award of $29,280 (73.2 weeks x $400 per week maximum = $29,280).
. Prior to the 2009 amendments, the Board also possessed the authority to commute periodic payments to a lump-sum payment in the interest of justice (see Workers’ Compensation Law § 25 [5] [b]).