Hamberger & Weiss LLP

Appellate Division Allows Reimbursement to Employer From SLU Without Prior Temporary Disability Award

On 2/8/17, the Appellate Division, Third Department, decided Newbill v. Town of Hempstead. This case involved a dispute over employer reimbursement for wages paid out of a schedule loss of use award. Claimant argued that the employer should not be reimbursed for time periods where wages were paid but no indemnity awards made. This would have denied the employer full reimbursement out of the schedule loss of use award for all wages paid. This argument has been successfully used by claimant's attorneys in the past to deny employers reimbursement and create a windfall for claimants.

The Court rejected claimant’s argument, noting that schedule loss of use awards are not connected to specific periods of lost time. In doing so, the Court established the rule that regardless of whether indemnity awards are or are not made for specific periods of temporary disability in a schedule loss of use case, the employer is entitled to full reimbursement for wages paid out of the SLU award so long as a timely and legally sufficient reimbursement request is filed.

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