Workers’ compensation payments are periodic payments of money – but are they assets? Property? What rules apply to them in a family support or divorce matter?
When the New York Workers’ Comp Board makes awards, especially awards for “permanent” disability, or makes a final settlement award, many people come to think of the award as a common form of property. However, like much else in workers’ comp, the truth is far different.
First, “permanent” disability is not really permanent. The Board can change the award at any time under Sect 123 of the WCL and rule a permanently disabled worker is no longer disabled at all.
Second, even where awards continue to be paid they are not property the worker may dispose of at will. Section 33 of the WCL describes periodic payments as being generally free of liens and may not be transferred by the worker.
New York has recognized since 1935 that comp payments are for the support of a family, not just the worker. New York courts, since 1984, may issue orders of support, which become liens on comp payments under Sects. 5241 and 5242 of the CPLR.
What this means is during a divorce the parties may not agree to apportionment or assignment of compensation payments. There is continuing joint oversight of the payments by the compensation board. The Board rules on the amount of the payment. And, the Supreme Court, rules as to how the amount may be distributed.
The dark side of work comp and family support is many younger workers, seeing an extended comp claim as a chance to shed an old relationship and start anew, move, halt contact or otherwise try to conceal a settlement of a comp claim – often, currently, ones over $100,000. (workersxzcompxzkit)
An employer should not be surprised to receive phone calls from an angry estranged spouse if a former worker is now on continuing comp. The call, predictably, is about learning the amount of work comp and where it is being sent. Such calls should be referred to the WCB, which will direct a spouse or child to the proper people for assistance.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers' compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100.
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