Traditionally, posthumous permanency awards in New York workers’ compensation claims were limited to certain circumstances where an injury to a statutorily enumerated body member (generally, an extremity) entitled a decedent-claimant’s qualifying survivors or estate to benefits based on the scheduled loss of use (SLU) of the extremity. In Matter of Green v. Dutchess County BOCES, 183 A.D.3d 23 (3d Dept. 2020), however, the New York State Supreme Court, Appellate Division, Third Department expanded workers’ compensation carriers’ liability to payments not just for posthumous SLUs, but also for permanent partial disability (PPD) benefits to a claimant’s estate, even where the claimant passes during the PPD period as a result of unrelated causes. The Court of Appeals passed on providing a substantive ruling on the matter pending a final determination on awards following remand in Green, leaving the case currently valid law.

In SLU cases, it has long been held that if a claimant passes after it is proven that their injury has resulted in permanent loss that qualifies for an SLU award, qualifying survivors or their estate are entitled to some or all of that payment. Even in cases involving no lost time, the justification for this rested on the fact that the claimant’s medical situation achieved a stable point and the impact of the injury on the claimant’s earning potential could be calculated based on the medical evidence preceding death. In contrast, when a claimant’s injury qualifies them for a PPD award, a claimant’s entitlement to ongoing benefits has previously rested upon claimant demonstrating that they are out of work or making less than full wages due in part or in whole to their disability. In cases where the reason for a PPD claimant’s departure from the workforce is wholly unrelated to their disability, such as a voluntary retirement (and previously, death), awards were suspended based on the fact that a deceased claimant can no longer demonstrate that their injury impacts their earning power following the date of death.

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