NY Worker’s Estate Entitled Only to Portion of Posthumous Schedule Loss of Use Award

In New York, where an injured employee dies without leaving a surviving spouse, child under 18 years old or dependent, only that portion of the employee's schedule loss of use (“SLU”) award that had accrued at the time of the death is payable to the estate, reiterated a state appellate court in Matter of Estate of Youngjohn v Berry Plastics Corp., 2019 N.Y. App. Div. LEXIS 1315 (Feb. 21, 2019). That rule applies, said the court, even when the SLU award is posthumous and in spite of the 2009 statutory amendments to N.Y. Workers’ Comp. Law §§ 15(3) and 25(1)(b), in which the Empire State’s Legislature—responding to Matter of LaCroix v Syracuse Exec. Air Serv., Inc., 8 NY3d 348, 866 N.E.2d 1004, 834 N.Y.S.2d 676 (2007)—authorized full payment of SLU awards in one lump sum at the request of the injured employee.


The worker was injured in a work-related accident in December 2014, and his claim for workers' compensation benefits was established for an injury to his right shoulder. In June 2015, the claim was amended to include an injury to his left elbow. In 2016, an IME was conducted on behalf of the employer's workers' compensation carrier. All of the medical experts agreed that decedent had reached MMI, although they disagreed as to the SLU percentages. On March 4, 2017, prior to the resolution of the issue, the worker died as a result of reasons unrelated to his workplace injuries.

At the time of decedent's death, he had no surviving spouse, children under 18 years of age or dependents. Following decedent's death, the parties stipulated to a 55 percent SLU of the left arm and a 45 percent SLU of the right arm. A WCLJ found that the decedent was entitled to a specified number of weeks of benefits, ordering also that the total SLU award, less payments already made, be paid to claimant, decedent's estate.

The Board modified the WCLJ's decision, finding that N.Y. Workers' Comp. Law § 15(4)(d) limited the amount of the SLU award to reasonable funeral expenses. Claimant appealed.

Appellate Decision

Upon further review, the appellate court held that there was neither clear statutory language nor any indication of statutory intent that, in granting the option of a lump-sum payment, the Legislature intended for the employee's estate to collect any portion of the posthumous SLU award that had not accrued prior to death. Accordingly, the court modified the Board’s determination and remitted the matter for a proper recalculation of the amount of the SLU award due to the worker’s estate.

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