Lambert v. Manhattan & Bronx Surface Transit Operating Auth.
| Decision Date | 15 December 2022 |
| Docket Number | 534882 |
| Citation | 211 A.D.3d 1298,180 N.Y.S.3d 340 |
| Parties | In the Matter of the Claim of Joseph LAMBERT, Claimant, v. MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, Appellant. Workers' Compensation Board, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Jones Jones LLC, New York City (David Secemski of counsel), for appellant.
Letitia James, Attorney General, New York City (Alison Kent–Friedman of counsel), for respondent.
Before: Aarons, J.P., Pritzker, Reynolds Fitzgerald, Ceresia and Fisher, JJ.
Ceresia, J. Appeal from a decision of the Workers' Compensation Board, filed September 14, 2021, which ruled that the remaining unpaid portion of claimant's schedule loss of use award could be payable in a lump sum upon his request.
In 2016, claimant, who worked for the employer for 29 years as a token booth agent and bus driver, filed a claim for workers' compensation benefits based upon work-related repetitive use, and his claim was established for bilateral shoulder, right hip and right knee injuries
with a date of accident of September 8, 2016. In a May 2018 reserved decision, a Workers' Compensation Law Judge (hereinafter WCLJ) found that claimant had sustained a 40% schedule loss of use (hereinafter SLU) of the right arm, a 35% SLU of the left arm and a 45% SLU of the right leg and directed claimant's award to be paid out on a weekly basis for 275.8 weeks, until August 29, 2023. The decision of the WCLJ was subsequently affirmed by the Workers' Compensation Board in a February 2019 decision. In March 2021, claimant filed a request for further action by legal counsel (form RFA–1LC) and requested that the amount of the SLU award that remained owed to him be paid in a lump sum. Following a hearing on the matter, a WCLJ granted claimant's request, finding that there was no timeframe limiting claimant's request for payment of a lump sum award pursuant to Workers' Compensation Law § 25(1)(b). Upon administrative appeal, the Board affirmed, concluding that claimant's request, made pursuant to Workers' Compensation Law §§ 15(3)(u) and 25(1)(b), for a lump sum payment of the remaining portion of his SLU award is not restricted to the specific point in time that the award is made. The employer appeals.
The gravamen of the employer's appeal is that claimant is not permitted to request a lump sum payment of the remaining portion of his SLU award at any time he chooses and that, instead, the request for a lump sum payment of the award must be made at the time that the SLU award is initially made. We disagree. By way of background, "[w]ith respect to permanent partial disabilities, SLU awards are issued for such disabilities that involve a body part specifically enumerated in Workers' Compensation Law § 15(3)(a) through (t)" ( Matter of Estate of Youngjohn v. Berry Plastics Corp., 36 N.Y.3d 595, 599, 146 N.Y.S.3d 231, 169 N.E.3d 589 [2021], citing Matter of Mancini v. Office of Children & Family Servs., 32 N.Y.3d 521, 526, 93 N.Y.S.3d 652, 118 N.E.3d 191 n [2018] ; see Workers' Compensation Law § 15[3][a]-[t] ; Matter of Johnson v. City of New York, 38 N.Y.3d 431, 439, 174 N.Y.S.3d 294, 195 N.E.3d 1 [2022] ; Matter of Walczyk v. Lewis Tree Serv., Inc., 134 A.D.3d 1364, 1365, 22 N.Y.S.3d 257 [3d Dept. 2015], lv denied 28 N.Y.3d 902, 2016 WL 4743333 [2016] ). "SLU awards are based on a percentage of the employee's weekly wages but, unlike other types of compensation awards, the duration of the SLU award is determined by a statutory schedule assigning a fixed number of weeks of compensation specific to the particular body part that is injured" ( Matter of Estate of Youngjohn v. Berry Plastics Corp., 36 N.Y.3d at 599–600, 146 N.Y.S.3d 231, 169 N.E.3d 589 ; see Workers' Compensation Law § 15[3] ). The purpose of an SLU award is to "compensate for loss of earning power" caused by the permanent partial disability ( Matter of Marhoffer v. Marhoffer, 220 N.Y. 543, 547, 116 N.E. 379 [1917] ; see Matter of Estate of Youngjohn v. Berry Plastics Corp., 36 N.Y.3d at 600, 146 N.Y.S.3d 231, 169 N.E.3d 589 ; Matter of Walczyk v. Lewis Tree Serv., Inc., 134 A.D.3d at 1365, 22 N.Y.S.3d 257 ). "Unlike an award of weekly compensation for a disability, which is based upon the actual period during which an employee is disabled from earning full wages, liability for an SLU award arises as of the date of the accident, and the weekly rate and number of weeks specified in the schedule are merely the measure by which the total amount of the award is calculated; while the decisions often list the SLU award as covering certain dates, the SLU award is not allocable to any particular period of disability" ( Matter of Estate of Youngjohn v. Berry Plastics Corporation, 169 A.D.3d 1237, 1238, 94 N.Y.S.3d 396 [3d Dept. 2019] [internal quotation marks, brackets and citations omitted]; see Matter of Cruz v. City of N.Y. Dept. of Children's Servs., 123 A.D.3d 1390, 1391–1392, 999 N.Y.S.2d 603 [3d Dept. 2014], lv denied 26 N.Y.3d 905, 2015 WL 5445684 [2015] ).
In 2009, the Legislature amended the Workers' Compensation Law to add the statutory provisions that expressly permit lump sum payments of SLU awards (L 2009, ch 351, §§ 1–2 [Aug. 26, 2009]; see Workers' Compensation Law §§ 15[3][u] ; 25[1][b]; Matter of Walczyk v. Lewis Tree Serv., Inc., 134 A.D.3d at 1366, 22 N.Y.S.3d 257 ). Specifically, the Legislature amended Workers' Compensation Law § 25(1)(b) to provide that, although compensation shall otherwise generally be payable on a biweekly basis, "[a]n award of compensation payable for permanent partial disability under paragraphs a through t, inclusive, of subdivision [3] of section [15] of this article, shall be payable in one lump sum, without commutation to present value upon the request of the injured employee" (L 2009, ch 351, § 1). Relevant here, and consistent with that modification, the Legislature also amended Workers' Compensation Law § 15(3)(u) to provide that, for SLU awards involving multiple body parts, "the [B]oard shall award compensation for the loss or loss of use of each such member or part thereof, which awards shall be fully payable in one lump sum...
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