If you were injured on the job and were awarded workers’ compensation for a set amount of time, what happens if you die during that timeframe from something unrelated to the injury? Do your heirs lose the entire unaccrued portion of the award? Well, the first inquiry required to resolve this question is whether the injury resulting in the award is a schedule or non-schedule injury as defined by Workers’ Compensation Law. 

A schedule loss of use (SLU) award is designed to compensate for loss of earning power; while non-schedule awards reimburse claimants for earnings lost due to the injury. 

In New York, accrued but unpaid portions of schedule and non-schedule awards that should have been paid out during the recipient’s lifetime can pass to a surviving child under the age of 18. 

With respect to unaccrued portions of the awards after the decedent’s death, many courts have awarded posthumous benefits for an unaccrued schedule award. In other words, the surviving child could collect the schedule award for the remaining period of time after the decedent died. However, it was not until recently that the question was resolved concerning unaccrued nonscheduled awards. 

In Matter of Green v. Dutchess County BOCES, the decedent was awarded $500 a week pursuant to a nonscheduled award for 350 weeks but died from something unrelated after 311.2 weeks. His son thereafter sought the accrued but unpaid amounts of the award plus the unaccrued benefits for the 38.8 weeks that remained before the 350-week mark. As a result, the judge had to answer the question of whether the remaining 38.8 weeks of unaccrued benefits could be passed to the decedent’s son.

In this case, the Workers’ Compensation Law Judge awarded the decedent’s son the unpaid amounts up to the 311.2 weeks. However, the Judge denied the award for the remaining 38.8 weeks on the grounds that non-schedule awards are based on lost earnings and when someone dies, “there are no future earnings to lose.” 

The decedent’s son appealed and the New York Appellate Division, Third Department ruled that he was entitled to the additional award for the remaining 38.8 weeks.

The Court of Appeals reversed the Appellate Division’s decision and reinstated the Worker’s Compensation Law Judge’s decision. The Court reasoned that “the nature of nonscheduled 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.”

Therefore, the lesson of this case is that if you are ever in a situation where you may inherit a Workers’ Compensation award from a loved one, contact a knowledgeable estate planning attorney to discuss what type of award it is and the extent of your entitlement to any unpaid remaining portions of the award.

If you have questions about your case, contact one of our attorneys.