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A NONSCHEDULE AWARD AND A SCHEDULE AWARD ARE CALCULATED DIFFERENTLY; A NONSCHEDULE AWARD IS CALCULATED BASED UPON EARNING CAPACITY, WHICH OBVIOUSLY CEASES UPON DEATH; HERE, WHERE THE INJURED WORKER DIED FROM A CAUSE UNRELATED TO THE INJURY, THE BENEFICIARY IS THEREFORE NOT ENTITLED TO THE UNACCRUED PORTION OF THE NONSCHEDULE AWARD (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Garcia, determined the unaccrued portions of a nonschedule award under Workers’ Compensation Law (WCL) section 15 (3) do not pass to the beneficiary of an injured employee who died from causes unrelated to the work injury:

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” … . A nonschedule award, in contrast, seeks to reimburse a claimant for earnings lost due to injury … . …

The nature of nonschedule awards, dependent on an employee’s actual earnings and the continuance of the disability, is such that there is no remaining portion of the award that can pass through to a beneficiary. …

Schedule and nonschedule awards are calculated differently, reflecting the different purposes they serve. Nonschedule awards require fact-specific, individual calculations based on the impairment of wage-earning capacity. …

More than 100 years ago, this Court urged recognition of the difference between schedule and nonschedule awards, explaining that cases “where the award is to be measured by the difference between wages and capacity [nonschedule awards] are, of course, not to be confused with those where the act prescribes a fixed and certain limit [schedule awards]” … . Matter of Green v Dutchess County BOCES, 2022 NY Slip Op 06028, CtApp 10-27-22

Practice Point: Under Workers’ Compensation Law section 15, nonschedule awards are calculated differently from schedule awards. Nonschedule awards are measured by the difference between wages and earning capacity (which ceases upon death). Therefore, after a worker dies from a cause unrelated to the injury for which the worker was being compensated by a nonschedule award, any unaccrued portion will not pass to a beneficiary. Schedule awards, on the other hand, prescribe a fixed amount with a certain limit.

 

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