NY Employers Should Know About This Decision

This week, the NY Court of Appeals issued a major decision on RTW. It also issued a decision, Schmidt v Falls Dodge, Inc, 2012  NY Slip Op 03359, which will receive little attention, but carries powerful potential.

 

 

The worker in the case had a series of significant injuries and received the max payments from the last of the injuries. Previously though the worker had a substantial “schedule loss” claim. Those claims are paid even if there is no lost time. However, they are paid in weeks from the date of the accident. If the schedule loss is equal to 104 weeks of compensation, full payment is not made until two years after the accident.[WCx]

 

 

But what if the weeks overlap a later period being paid at the maximum? The law is that all comp payments from different claims, when added together, cannot exceed the current max weekly payment (2/3 of average wage or $772/wk currently).

 

 

A little confusing? Most comp lawyers think so, which is why there is always a dispute when the overlap occurs. And disputes cost time and money and boost the x-mods.

 

 

However, many are paid without a fight. Overlapping awards could be considered a trick question on a comp exam because few people guess the way to the correct answer.

 

 

Not so long ago, some lawyers thought they had found a way to increase death claims substantially. If the worker did not die immediately, but lingered for a few days, the lawyer potentially added substantial claims for schedule losses to the legs and arms amounting to tens of thousands of dollars. Since the award was for a technically different claim (disability, not death) the lawyers argued that the schedule losses should be paid in addition to the death claim.

 

 

On one claim, involving a fatal fall from a scaffold, the lawyer asked for 1200 weeks additional at max rate, since the worker had badly fractured both arms and both legs. At today’s rates, that could have come to $926,400 additional. Tax free.

 

 

He did not get it, but he tried. His client died 48 hours after the fall.

 

 

 

 

With the death claim, there can be a disability claim for the period prior to death (for substantial medical, for example) but any award for lost time or schedule loss cannot be for weeks extending beyond the date of death. If that is only two weeks, then two weeks of payments on the disability claim is all that must be paid.

 

 

On the overlapped periods (not involving death) each period is paid as it would have been, except that during the overlaps the total in any week cannot exceed the max rate at the time.

 

 

What becomes of the lost excess? Here is the part that causes the fights.

If the excess occurs with a claim with schedule loss payments, the excess is “saved” until a period occurs when it can be paid. If it occurs with two non-schedule claims, the excess is not “saved”, but lost.[WCx]

 

 

How long does it take full time comp attorneys to master the above? Judging from the trials and appeals, some never do or just refuse to quit.

 

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. medsearch7@optonline.net