EMPLOYEE’S ESTATE ENTITLED TO THE AMOUNT OF THE SCHEDULE LOSS OF USE AWARD THAT ACCRUED UP UNTIL THE EMPLOYEE’S DEATH, NOT THE ENTIRE SLU AWARD (THIRD DEPT).

The Third Department determined that the employee’s estate was entitled to the portion of the schedule loss of use (SLU) award that had accrued up until the time of the employee’s death:

In our view, the 2009 statutory amendments did not alter the longstanding rule that, where an injured employee dies without leaving a surviving spouse, child under 18 years old or dependent, only that portion of the employee’s SLU award that had accrued at the time of the death is payable to the estate, along with reasonable funeral expenses… . Nor did, as claimant contends, the amendments alter the rate at which an SLU award accrues to an injured employee who is posthumously awarded SLU benefits. Absent clear statutory language or an indication of statutory intent, we cannot conclude that, in granting the option of a lump-sum payment, the Legislature intended for the employee’s estate to collect any portion of the posthumous SLU award that had not accrued prior to death. Accordingly, claimant was not entitled to the entirety of decedent’s SLU award. Matter of Estate of Youngjohn v Berry Plastics Corp., 2019 NY Slip Op 01290, Third Dept 2-21-19