Opinion
2012-12-20
In the Matter of the Claim of Dominick SCIAME, Appellant, v. AIRBORNE EXPRESS, INC., et al., Respondents. Workers' Compensation Board, Respondent.
Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel), for appellant. Weiss, Wexler & Wornow, PC, New York City (Michael J. Reynolds of counsel), for Airborne Express, Inc. and another, respondents.
Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel), for appellant. Weiss, Wexler & Wornow, PC, New York City (Michael J. Reynolds of counsel), for Airborne Express, Inc. and another, respondents.
Before: ROSE, J.P., LAHTINEN, SPAIN, KAVANAGH and McCARTHY, JJ.
ROSE, J.P.
Appeal from a decision of the Workers' Compensation Board, filed August 5, 2011, which ruled that claimant was not entitled to a schedule loss of use award.
Claimant filed two separate claims for workers' compensation benefits in 2004. One, for a back injury, was ultimately found to constitute a permanent partial disability, and payment of the maximum amount of $400 a week in benefits was ordered. As for the other, the parties agreed that claimant sustained a compensable schedule loss of use to his left arm. The self-insured employer and its third-party administrator argued, however, that claimant was not entitled to receive a schedule award because he was already receiving the maximum permitted amount of benefits on his nonschedule award. A Workers' Compensation Law Judge agreed, the Workers' Compensation Board affirmed and claimant appeals.
Workers' Compensation Law § 15(6)(a) specifies that, regardless of the type of disability, claimant can receive no more than $400 a week in benefits for his 2004 injuries. We have long held that concurrent payments for schedule and nonschedule awards may not exceed that maximum rate where the nonschedule award arises from a permanent disability ( see Matter of Lamantia v. Midland El. Co., Inc., 59 A.D.3d 892, 894, 874 N.Y.S.2d 287 [2009];Matter of Miller v. North Syracuse Cent. School Dist., 1 A.D.3d 691, 692, 767 N.Y.S.2d 142 [2003];Matter of Soper v. Gouverneur Talc Co., 243 A.D.2d 1001, 1002–1003, 663 N.Y.S.2d 696 [1997];Matter of Salvet v. Union Carbide Linde Div., 135 A.D.2d 965, 966–967, 522 N.Y.S.2d 375 [1987];Matter of Wilkosz v. Symington Gould Corp., 14 A.D.2d 408, 409–410, 221 N.Y.S.2d 209 [1961],affd.14 N.Y.2d 739, 250 N.Y.S.2d 297, 199 N.E.2d 387 [1964];see also Matter of Linger v. Anchor Motor Frgt., 124 A.D.2d 350, 351–352, 507 N.Y.S.2d 291 [1986],lv. denied69 N.Y.2d 605, 513 N.Y.S.2d 1026, 505 N.E.2d 954 [1987] ). Indeed, the Court of Appeals has recently held that the statutory cap extends to any concurrently made “periodic payments of a schedule loss of use award” and nonschedule award payments, even if the latter are for a temporary disability (Matter of Schmidt v. Falls Dodge, Inc., 19 N.Y.3d 178, 183, 947 N.Y.S.2d 376, 970 N.E.2d 399 [2012] ).
Contrary to claimant's argument, there is nothing in the 2009 amendments to Workers' Compensation Law §§ 15 and 25 that evinces an intent on the Legislature's part to overturn our longstanding precedent capping the maximum amount of awards paid concurrently ( seeWorkers' Compensation Law §§ 15[3] [u]; 25[1][b], as amended by L 2009, ch 351, §§ 1, 2; Assembly Mem in Support, 2009 McKinney's Sess Laws of N.Y. at 1720–1721). Accordingly, the Board properly determined that claimant's receipt of maximum weekly benefits on his nonschedule award precluded the receipt of additional benefits under a schedule loss of use award. Claimant's remaining arguments have been considered and found to be without merit.
ORDERED that the decision is affirmed, without costs.