In his Law360 Expert Analysis article, “Recoupment Questions Follow NY Workers’ Comp Ruling,” published November 7, 2022, Partner Cory A. DeCresenza examines the Matter of Green v. Dutchess County BOCES.
Prior to 2020, in New York workers’ compensation claims, post-death permanency awards to an injured worker’s qualifying dependents or estate were limited to specific situations where a statutorily enumerated extremity was found to be at maximum medical improvement prior to a claimant’s passing.
However, in Matter of Green v. Dutchess County BOCES, the New York Supreme Court’s Third Department in 2020 expanded workers’ compensation carriers’ liability to payments not just for these posthumous scheduled loss of use, or SLU, awards, but also for permanent partial disability, or PPD, benefits to a claimant’s estate, even where the claimant passes during the PPD period as a result of unrelated causes.
As expected, given that this had not been practice for decades, the matter was appealed to the state’s highest court, the New York Court of Appeals. A decision was rendered on Oct. 27, reversing the Third Department’s determination and restoring the traditional practice of PPD benefits ceasing at the time of a claimant’s passing due to unrelated causes.
So, what does this mean for participants before the board? In practice, for parties to a claim where no awards have been granted under the 2020 Green decision, it means very little. The long-standing practice of PPD awards suspending as of the date of death during the capped period of benefits will resume. For workers’ compensation carriers and self-insureds, this represents a return to normal procedure.
However, in those few cases over the last two years where such awards have been paid out, the question remains whether the 2020 Green decision will allow carriers to go back and revisit situations where the balance of a PPD award was paid out and seek recoupment.
To read the article, please click here.