NY Court Disapproves of Board’s “Virtual Banking” of Benefits Where Claimant Returns to Work at Preinjury Wages
Where a law judge found that an injured New York worker was entitled to a PPD classification based on impairments to her cervical and lumbar spine, entitling her to nonschedule benefits not to exceed 275 weeks, but she had returned to work at her preinjury wages and, therefore, was not entitled to a nonschedule award under N.Y. Workers’ Comp. Law § 15(3), it was error for the Board to find that she was not entitled to a schedule loss of use (SLU) award for injuries to her right ankle, right hand, and right ring finger that were sustained in the same accident [Matter of Arias v. City of N.Y., 2020 N.Y. App. Div. LEXIS 1440 (3d Dept. Feb. 27, 2020)]. The New York appellate court disapproved of the Board’s practice of “virtual banking” of benefits in such instances, stressing the worker was entitled to the SLU award irrespective of her wages.
Background
In 2016, a school crossing guard sustained work-related injuries when she slipped and fell on ice. Her ensuing claim for workers’ compensation benefits was established for right carpal tunnel syndrome and injuries to her right ankle, right hand, right ring finger, neck and back. In November 2018, a WCLJ determined that claimant, who was working without reduced earnings, was entitled to a PPD classification based on impairments to her cervical and lumbar spine and concluded that she had a 40 percent loss of wage-earning capacity, entitling her to nonschedule benefits not to exceed 275 weeks.
Claimant sought Board review, arguing in relevant part that because she had returned to work at preinjury wages and, thus, was not presently entitled to a nonschedule award based upon any actual loss of wages (see N.Y. Workers’ Comp. Law § 15(3)(w), she was entitled to a SLU award pursuant to the decision in Matter of Taher v. Yiota Taxi, Inc., 162 AD3d 1288, 78 N.Y.S.3d 500 (2018), lv dismissed, 32 NY3d 1197 (2019). The Board disagreed, finding that because claimant’s injuries were subject to a nonschedule classification, they were not also amenable to an SLU award. The claimant appealed.
Matter of Statutory Interpretation
The appellate court acknowledged that the Board had broad latitude as a finder of fact, but stressed that the issue here was one of statutory interpretation — namely, whether N.Y. Workers’ Comp. Law § 15(3) permitted a simultaneous SLU award and nonschedule classification for impairments that arose out of the same work-related accident where the claimant has returned to work at preinjury wages.
SLU Awards Not Based on Loss of Actual Earnings
The court stressed that the Board’s position was untenable, in that it would require injured claimants who had returned to work at preinjury wages — and yet, who are perhaps more extensively injured than similarly-situated claimants who had sustained only a permanent impairment to a scheduled member — to wait an unspecified period of time to receive any PPD award until, and only if, they experienced actual loss of wages and, thus, became eligible for a nonschedule award. The court indicated the difficulty with that position by the Board was that it was already well established that an SLU award was designed to compensate a claimant for the loss of earning power or capacity presumed to result as a matter of law.
Statute Does Not Provide for “Virtual Banking” of Benefits
The court continued:
The Board presents this indefinite, and potentially permanent, delay as a “virtual banking” of benefits. It is in fact an attempt to control how prudently a claimant uses or rations his or her lump-sum SLU award — and, thus, a policy choice with no basis in the Workers’ Compensation Law. It bears some emphasis that, when a claimant who has sustained a permanent impairment to a member has returned to work at preinjury wages, it is mere speculation that an award will ever be made for nonschedule injuries arising from the same accident.
The court continued that while the Board may be appropriately concerned about the possibility of double payment or recovery if, and when, a claimant experienced actual lost wages, that circumstance was provided for within Matter of Taher v Yiota Taxi, Inc. (see 162 AD3d at 1290 n 2). Moreover, the withholding of an SLU award in favor of the “virtual banking” of nonschedule cap weeks added unnecessary complexity in the event that a claimant suffered a death that was unrelated to the established sites of injury.
The court concluded that if the Legislature wished to amend the Workers’ Compensation Law to permit the virtual banking of benefits in the manner that the Board desired, it was of course free to do so. Until then, however, the court would abide by its prior holding in Matter of Taher.