New York Court of Appeals Caps the “Additional Compensation” Awarded to Claimants Who Exhaust a Schedule Loss of Use Award

On December 11, 2018, the New York State Court of Appeals decided Matter of Mancini v. Office of Children and Family Services, 2018 N.Y. Slip. Op. 08425, 2018 WL 6492707. At issue was the “additional compensation” entitled to injured workers who exhausted their Schedule of Loss award (SLU) when such award was 50 percent or greater. The claimant argued that the reference to WCL Section 15(3)(w) in Section 15(3)(v) only incorporates that part of 15(3)(w) that calculates the weekly award. Thus, he was entitled to ongoing benefits until he receives, or is entitled to receive, old age insurance benefits under the Social Security Act. In other words, it was the claimant’s position that, because he had a 50 percent schedule loss of use and he had exhausted those funds, he was entitled to ongoing awards almost indefinitely.

The background of the case is relatively straight forward. Claimant was injured while on the job. He was ultimately awarded a 50 percent schedule loss of use of the left arm. He never returned to work with the employer of record. Pursuant to the requirements of Section 15(3)(v), he exhausted his schedule loss of use award and completed a rehabilitation program. He then filed for additional compensation per Section 15(3)(v).

At issue at the administrative level was whether the durational limits contained in 15(3)(w) applied to the determination of “additional compensation” in 15(3)(v). The Workers’ Compensation Law Judge had determined that it did, and found the claimant to have a 37.5 percent loss of wage earning capacity, thereby limiting him to 270 weeks of “additional compensation” benefits. The claimant appealed.

Despite an affirmation by the Workers’ Compensation Appellate Review Board and the Appellate Division affirming that determination, the claimant brought this case to the Court of Appeals. The Court of Appeals, in making its determination, noted that the plain language of the relevant text of the Workers’ Compensation Law required that “additional compensation” be deemed as “the money allowance payable to an employee” per Workers’ Compensation Law Section 2(6). As such, the plain language of the statute incorporated both the provisions that calculated the weekly benefits, as well as the statutory caps imposed with the 2007 reforms. Indeed, the Court of Appeals noted that both types of permanency awards (SLU or non-schedule) were not to be deemed open-ended.

The Court of Appeals noted that their interpretation is consistent with and supported by the legislative history. The court specifically noted the 2007 reforms which were implemented in part to limit workers’ compensation costs to employers and carriers.

The take away here is that the Court of Appeals has firmly established a duration of cap for non-scheduled awards, despite their origination, and ensure that the purpose and integrity of the 2007 reforms remain intact. On a practical level, any claimant seeking “additional compensation” under Section 15(3)(v) of the Workers’ Compensation Law will now be required to not only show their entitlement to the same, but also to demonstrate that their injury has impaired their loss of wage earning capacity.

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