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New York Court of Appeals Resolves Estate’s Entitlement to Awards in Scheduled Loss of Use Claim

Case Study

New York Court of Appeals Resolves Estate’s Entitlement to Awards in Scheduled Loss of Use Claim

April 19, 2021
Matthew J. DeMarco

An uncommon, but tricky, situation arises in workers’ compensation when injured workers pass away during the course of their claim with unsettled issues outstanding. While some instances are more straightforward, such as when a claimant passes away as a result of his or her injuries and their widow is entitled to bring a separate claim for death benefits, other cases require more detailed analysis as to what awards remain due, owed, and to whom those benefits are owed.

Recently, the Court of Appeals had occasion to resolve an unsettled question in this area of law. In Matter of Estate of Youngjohn v. Berry Plastics, the Board and court were presented with an uncommon scenario. The claimant had received permanency opinions on scheduled loss of use (SLU) for injured extremities. Before the SLU award was implemented, however, the claimant passed away as a result of a heart attack, not related to the injuries of record. The claimant had no qualifying dependents (i.e., widow, minor children, or other enumerated dependents) at the time of his passing. The question presented to the Board and court was how much of the SLU award the claimant’s estate was entitled to receive.

The claimant’s estate argued that the 2009 amendments to the workers’ compensation law allowed the entirety of the SLU award to be paid to the claimant’s estate. Although the Workers’ Compensation Law Judge initially awarded the entirety of the SLU award to claimant’s estate, the Board reversed following an appeal by Goldberg Segalla on behalf of the carrier. Under the relevant statutory schemes (Sections 15[3][u], 15[4][d] and 33), the Board, Third Department, and Court of Appeals all ultimately agreed that the estate’s award was limited to that portion of the SLU award, which had accrued in terms of weekly TTD benefits before the claimant’s passing and then the future award was limited to the cost of reasonable funeral expenses. The decision is a victory for Goldberg Segalla’s Matthew J. DeMarco and Cory A. DeCresenza, members of the firm’s Workers’ Compensation group.

The takeaway from this decision is that when a claimant dies, a thorough review of the file is warranted to determine what may be due to whom. Whether a claimant’s widow, minor children, or estate is entitled to ongoing benefits should be discussed with your defense counsel prior to file closure to ensure that the correct amount of money is paid to the proper party to ensure that the file can be closed on a firm basis.


Goldberg Segalla’s success in efficient file-handling, as well as long-range strategic risk-management, has earned us a national reputation for exceeding our clients’ expectations and driving positive change in the practice of workers’ compensation law. One of the first law firms ever to approach workers’ compensation in this manner and at this scale, we have been able to achieve extraordinary cost savings for leading employers in sectors ranging from construction to retail to the gig economy.