Determining a nonscheduled Workers' Compensation award payable following the injured employee's death

The initial paragraph of this ruling by the Court of Appeals states "It is well settled that some categories of workers' compensation benefits may pass, in certain circumstances, to the beneficiaries of injured employees who die from causes unrelated to the work injury." The court then noted that unaccrued portions of a nonschedule award under Workers' Compensation Law (WCL) §15(3)(w) do not so pass, explaining that the statute "does not provide for any unaccrued portion of a nonschedule award to remain payable following an injured employee's death."

The Employee had sustained an injury in a work-related accident classified as having a nonschedule permanent partial disability. Employee received an award pursuant to WCL §15(3)(w) in the amount of $500 per week.

Pursuant to statutory caps imposed on the period for which nonscheduled awards may be paid, Employee was to receive this amount for no longer than 350 weeks. Employee, however, passed away due to unrelated causes after 311.2 weeks. Employee's minor son  [Claimant] sought the accrued unpaid amounts of his father's award, as well as benefits for the 38.8 weeks that remained before Employee's award would have reached the statutory durational cap.

The Workers' Compensation Board affirmed an administrative law judge's ruling denying these benefits sought by Claimant explaining that "no additional award is payable to the decedent's surviving child" because "[t]o be entitled to the awards the [employee] must have causally related lost time," and "[w]ith [an employee's] death, there are no future earnings to lose," so "no posthumous award is warranted".

In the words of the Court of Appeals, "[t]here is no dispute that, pursuant to WCL §33, Claimant is entitled to the accrued, unpaid portion of the award which his father should have received during his lifetime, in the amount of 311.2 weeks at $500 per week. [Claimant, however] is not entitled to $500 per week for an additional 38.8 weeks" sought by Claimant.

The court explained that under WCL §15 (4), where an injured employee dies from causes other than the injury, an award "made to a claimant under subdivision three" may pass, as relevant here, to "a surviving child ... under the age of eighteen years." WCL §15(3) provides for two categories of awards for injuries resulting in permanent partial disability. A "schedule loss of use" [SLU] award, provided for in §15(3)(a)-(u), is designed to "compensate for loss of earning power, rather than the time that an employee actually loses from work or the injury itself".

The nature of nonschedule awards, dependent on an employee's actual earnings and the continuance of the disability, is such that there is no remaining portion of the award that can pass through to a beneficiary. Accordingly, the Court of Appeals held that "the Workers' Compensation Board's 2021 decision and so much of the Appellate Division order brought up for review" in the instant appeal should be reversed, with costs, "and the Workers' Compensation Board's 2019 decision reinstated."

Click HEREfor the instant decision by the Court of Appeals.

 

Administrative procedures to be followed are negotiable within the meaning of the Taylor Law

In this action, the Court of Appeals addressed the question whether Article 14 of the Civil Service Law, typically referred to as the Taylor Law, requires a public employer to engage in collective bargaining to determine the administrative procedures to be followed in determining if an employee placed on "workers' compensation leave" pursuant to Section 71 of the Civil Service Lawmay be terminated from the position if the individual is "absent from work for more than a year due to an injury sustained in the line of duty".

The decision notes that in Matter of City of Schenectady v New York State Public Employment  Relations Board, 85 NY2d 480 [Schenectady] the Court of Appeals held that "a city's authority under section 207-c to make initial determinations about those matters is not 'subject to mandatory bargaining' but left open the question of whether 'the procedures for implementation of the requirements of [section] 207-c' are a subject of collective bargaining."

The Court of Appeals then noted that it "answered that question in the affirmative five years later" in Matter of City of Watertown v State of New York Public Employment Relations Board, 95 NY2d 73 [Watertown], holding that "the procedures for contesting the City's determinations under section 207-c are a mandatory subject of bargaining."

Distinguishing its ruling in Schenectady, in Watertown the court concluded that "[u]nlike the initial determinations themselves - which were at issue in Schenectady 'the text of section 207-c says nothing about the procedures for contesting those determinations'" and explained that "'based on the text and history of section 207-c, it was evident that [t]he Legislature expressed no intent - let alone the required 'plain' or 'clear' intent - to remove the review procedures from mandatory bargaining".

Opining that it is undisputed that the City's right to terminate the employee is not a  mandatory negotiation subject of collective bargaining, the Court of Appeals held that the City must negotiate the administrative procedures necessary to implement that right, concluding that in this instance "collective bargaining is required."

Click HEREto access the Court of Appeal' ruling in the instant action.

 

New leave polices for employees of the State of New York as the employer issued

The New York State Department of Civil Service has announced the publication of the new Attendance and Leave Policy Bulletins listed below: 

Policy Bulletin 2022-04, World University Games – Paid Leave for Volunteers 

Policy Bulletin 2022-05, Implementation of the Productivity Enhancement Program for 2023 

If you wish to print Policy Bulletin 2022-04, a version in PDF format is available at: https://www.cs.ny.gov/attendance_leave/pb2022-04.pdf 

If you wish to print Policy Bulletin 2022-05, a version in PDF format is available at:https://www.cs.ny.gov/attendance_leave/PEP2023_Combined.pdf 

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cfm