Hamberger & Weiss LLP


Court of Appeals Declines to Hear Green Case Regarding Posthumous PPD Awards

One year ago, we reported on the Appellate Division’s decision in Green v. Dutchess County BOCES, which held that when a claimant with a capped permanent partial disability (“PPD”) dies for reasons unrelated to the claim, any remaining weeks on the PPD cap are payable to the deceased claimant’s surviving relatives enumerated in WCL §15(4). Both the employer in Green and the Board filed motions requesting leave to appeal to the Court of Appeals, the highest court in New York State. The appellants would only have an appeal by right to the Court of Appeals if there were two dissenting justices in the Appellate Division decision. The Appellate Division’s decision in Green was unanimous.
The Court of Appeals dismissed the motions filed by the Board and employer for leave to appeal on the grounds that the order sought to be appealed from did not “finally determine” the proceeding within the meaning of the Constitution. Finality is a complex legal concept relevant to appellate practice which requires that the decision appealed from dispose of all of the issues between the parties, leaving nothing for further judicial (or in the case of the Board, administrative) action apart from mere ministerial actions.
The employer in Green still has the right to appeal the Board’s “final decision” when it is issued and also has the right to make another motion for leave to appeal. Accordingly, we recommend that our clients continue to object to any request for payment of capped PPD benefits to a deceased claimant’s surviving relatives until the Court of Appeals either decides this issue on the merits or refuses to grant leave to appeal with prejudice.

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