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The decedent was injured at work on 11/19/2007. On 3/28/2012 decedent was classified with a permanent partial disability and a 51% loss of wage-earning capacity entitling him to wage loss benefits not to exceed 350 weeks. He was awarded ongoing reduced earnings benefits. He died March 12, 2018. He died 311.2 weeks later of unrelated causes.

His surviving child claimed that the remaining 38.8 weeks of his maximum of 350 weeks should be paid. The Board denied that claim, but the Appellate Division reversed and ruled that the remaining 38.8 weeks should be paid to the surviving child. The court found no reason to differentiate between posthumous schedule loss of use awards and posthumous non-schedule awards.

On October 27, 2022 the Court of Appeals reversed and reinstated the original WCB ruling denying the posthumous award.

The referenced section, WCL § 15 (3), provides for two categories of awards for injuries resulting in permanent partial disability. A “schedule loss of use” (SLU) award, provided for in section 15 (3) (a)-(u), is designed to “compensate for loss of earning power, rather than the time that an employee actually loses from work or the injury itself” (Johnson v City of New York,     NY3d, 2022 NY Slip Op 02579, *1-2 [2022]). A nonschedule award, in contrast, seeks to reimburse a claimant for earnings lost due to injury (see Burns v Varriale, 9 NY3d 207, 216, 879 N.E.2d 140, 849 N.Y.S.2d 1 [describing a nonschedule award under WCL § 15 [3] [w] as a “reduced earnings award”]).

(Matter of Green v Dutchess County BOCES, ___NY3d___, 2022 NY Slip Op 06028, *1 [2022])