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Workers' Compensation Board

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Case # G1038724
Date of Accident: 10/15/2013
District Office: Albany
Employer: NYS Office of Children &
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 66917279-090
Date of Filing of Decision: 02/27/2017
Claimant's Attorney: Alex C. Dell, Esq.
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on January 24, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed May 13, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether claimant may receive a schedule loss of use (SLU) award in this case payable in a lump sum, despite also receiving awards at the statutory maximum rate of $803.21 per week in WCB #G1030012.

The Workers' Compensation Law Judge (WCLJ) found that claimant could not receive the SLU in a lump sum in this case because he was being paid at the maximum rate in WCB #G1030012.

The Board Panel majority affirmed the WCLJ.

The dissenting Board Panel member would find payment of the SLU in a lump sum would not violate the statutory maximum rate set in WCL § 15(6), as an SLU award compensates a claimant for presumed loss of future earning capacity, rather than actual lost time.

The claimant filed an application for Mandatory Full Board Review on June 10, 2016.

The carrier filed a rebuttal on June 30, 2016.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This claim is established for a work-related right arm injury that occurred on October 15, 2013 (WCB #G1038724). The claimant's average weekly wage was set at $2,476.01.

WCB #G0393488 involves a compensable work-related left shoulder injury that occurred on March 16, 2011. The claimant was awarded benefits in WCB #G0393488 from June 2, 2015, to July 23, 2015, at $739.83 temporary total disability rate.

WCB #G1030012 is established for work-related injuries to the claimant's left eye, head, back and post-traumatic stress disorder, resulting from a of December 4, 2013, accident. Since December 5, 2013, claimant has received benefits in WCB #G1030012 at the statutory maximum rate of $803.21 per week, except for the period from June 2, 2015, to July 23, 2015, when he received combined benefits totaling $803.21 per week in WCB #G1030012 ($63.38 per week) and WCB #G0393488 ($739.83 per week).

In this case (WCB #G1038724), in a decision filed June 23, 2015, the WCLJ found, based on the medical evidence in the record, that claimant's condition was amenable to a 64.333% SLU of the right arm, which would entitle the claimant to 200.71896 weeks of benefits at the rate of $803.21 per week payable from October 15, 2013, to August 19, 2017, for a total SLU award of $161,219.48 (less prior awards). The WCLJ noted that the claimant had requested that the SLU be paid in one lump sum without commutation to present value. However, the WCLJ found that the claimant could not receive the SLU in a lump sum in this case because he was then receiving temporary partial disability benefits in WCB #G1030012 at the statutory maximum rate of $803.21 per week.

The claimant requested administrative review of the WCLJ's June 23, 2015, decision, arguing that the SLU award should be payable immediately in a single lump sum.

The carrier filed a timely rebuttal.

Claimant was subsequently classified permanently totally disabled in WCB #G1030012 by a notice of decision filed November 22, 2016.

LEGAL ANALYSIS

A lump sum payment of a schedule loss of use award does "not violate the maximum disability rate provisions of [WCL] § 15(6)" (Matter of Walczyk v Lewis Tree Serv., Inc., 134 AD3d 1364 [2015], lv denied 28 NY3d 902 [2016]). Specifically, the Court has "recognized that 'under [WCL] §§ 15 (3)(u) and 25 (1)(b), as amended in 2009, where there is a permanent partial loss of use of more than one member or body part, the award "shall be fully payable in one lump sum upon the request of the injured employee"' (Walczyk, 134 AD3d 1364 [2015], lv denied 28 NY3d 902 [2016], quoting [WCL] § 15 [3] [u])" (Matter of Colasanti v Con Edison, 142 AD3d 1276 [2016]).

In Matter of Colasanti, decided after the Board Panel's decision in this matter, the court found that the payment of an SLU in a single lump sum at the claimant's request pursuant to WCL §§ 15(3)(u) and 25(1)(b), did not violate the statutory maximum rate provision of WCL § 15(6), even though the claimant was receiving benefits in another (non-schedule) claim at the statutory maximum rate.

The Board Panel has previously found that a schedule award is not payable in a lump sum when the claimant is receiving benefits at the total disability rate in another claim (see Matter of Broome County Sherriff's Dept., 2016 NY Wrk Comp G0502705). Here, claimant was ultimately classified permanently totally disabled in WCB #G1030012 by a notice of decision filed November 22, 2016. However, at the time the WCLJ awarded the SLU and claimant requested that the SLU be paid in a lump sum (June 18, 2015, hearing), claimant was receiving awards for a temporary partial disability in WCB #G1030012, and claimant should have been awarded an SLU payable in a lump sum at the June 18, 2015, hearing. The subsequent classification of the claimant with a permanent total disability does not alter this result.

Therefore, the Full Board finds that the SLU award is to be paid immediately in a single lump sum.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed June 23, 2015, is MODIFIED to direct the carrier to pay the SLU award immediately in a single lump sum. No further action is planned by the Board at this time.