Hamberger & Weiss LLP


Special Alert: New York Court of Appeals Reverses Green Decision; PPD Awards No Longer Paid After Death

Insurance carriers and employers in New York exhaled a sigh of relief after the Court of Appeals issued its decision in Green v. Dutchess County BOCES on 10/27/22. This decision from New York's highest appellate court reverses an Appellate Division holding which required posthumous payment of remaining capped permanent partial disability benefits in non-schedule loss of use award cases when the claimant dies for reasons unrelated to their work injury. That decision, now reversed, created a new category of New York workers' compensation benefits with potentially huge additional unplanned liabilities for New York workers' compensation payers. When the Appellate Division’s decision in Green was published, Hamberger & Weiss LLP opined that the decision was wrongly decided because it failed to apply long-standing precedent requiring causally related lost time / lost wages as a prerequisite to permanent partial disability awards.

The Court of Appeals held that there is no statutory basis in the plain language of the workers' compensation law or in the legislative histories of statutory amendments over the years supporting Appellate Division's decision. The Court highlighted the fundamental distinction between schedule and non-schedule permanent partial disability awards over 100 years ago in 1921. One hopes this unambiguous reaffirmation by the Court of that fundamental distinction will lay to rest any future attempts to blur the difference between schedule and non-schedule awards for another 100 years.

Please do not hesitate to contact any of our attorneys with questions about this decision.

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