case in New York that is challenging the cessation of Permanent Disability benefits upon the death of a worker may change the landscape of workers’ comp in the state. A family whose husband and father unexpectedly died with almost 39 weeks of his PPD payments remaining is suing, claiming they are entitled to the full 350 weeks of benefits that he was awarded. 

The case came to my attention when the story was forwarded to the Cluttered Desk because of the potential applicability for Kids’ Chance to help. The gist of the news piece was that the worker at the center of the suit had a 15-year-old son, with aspirations of attending Duke University after high school. The family wants the money to help fund his college ambition.

The case centers around the fathers’ injury, which appears to be unrelated to his death. Working as a school Crisis Intervention worker, he injured his knee in a confrontation with a student. He was determined to have a “non-schedule permanent partial disability with a 51% loss of wage-earning capacity entitling him to 350 weeks of benefits.”

Then, 311 weeks into his benefit period, he died of cardiac arrhythmia, and his payments were stopped.

With 38.8 weeks of payments remaining when the benefits were cut off, the man’s wife filed an application for review. A Workers Compensation Law judge ruled that they were not entitled to the money. 

In March of 2020, the state appellate court reversed the decision because “it allowed for scheduled and non-scheduled payments for permanent partial disabilities to be treated differently when it comes to distributing the benefits after death.”

In fact, due to that apparent disparity between scheduled and non-scheduled benefits, the New York Attorney General’s office has asked the Appellate Court to re-hear the case. In May, attorney Dustin Brockner, who represents the state’s AG, asked the appellate court to hear the argument again because “the court overlooked the operative text of the provision for non-schedule awards and rendered a decision that is in tension with Court of Appeals’ precedent.”

My opinion is, while everyone should want to see this man’s son achieve his college dreams, that cannot be weighed in the argument over whether benefits are due to the survivors of an injured worker in a case like this. The nature of permanent partial disability payments should be to provide for lost earning capacity while the person is alive. It should not be considered some form of life insurance, unless the death can be directly attributed to the injury itself. After all, if the man had never been injured and suddenly died of cardiac arrhythmia, there would be no benefits to dispute, but his earning capacity would still have ceased, nonetheless. The employer was held responsible for compensating lost earning capacity, which they did. Payment after a death unrelated to work is compensating for wages that would never have been earned; and that defies reasonable logic.

Of course, we recognize that logic and the law do not always go hand in hand. We will have to see where the courts take us on this one.

For our part, we did reach out to the family through the reporter that wrote the story, to make sure they knew about the Kids’ Chance scholarship organization. It certainly sounds like the father’s injury could be a qualifier for consideration of their support. I hope they pursue that angle, and that the young man can achieve his dreams. It is, by all accounts, what his father would have wanted. It is just unfortunate that life’s foibles have gotten in the way.

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