Schmidt v. Falls Dodge, Inc.

OPINION OF THE COURT

Smith, J.

Workers’ Compensation Law § 15 (6) provides that compensation for any disability, partial or total, shall not exceed a fixed maximum per week. At issue in this case is the application of the cap when an employee has received several awards for different injuries, at least one of which is a so-called “schedule loss of use” award being paid periodically pursuant to the pre-2009 version of Workers’ Compensation Law § 25. We hold that in such cases an employee’s total weekly payment may not exceed the cap. The schedule award is not nullified by the other awards, but must be deferred until the time comes when the cap will not be exceeded.

I

Plaintiff worked as a collision shop technician, repairing automobiles. He suffered several injuries on the job, of which three, all occurring in 2005, are relevant to this appeal. On February 21, he slipped on ice, injuring his hip and back. On March 18, he suffered a lower back sprain. He left his job on June 27, and later reported hearing loss beginning on that date, attributable to loud noise at his place of work. He applied for and received workers’ compensation benefits for all three injuries.

For the hip and back injuries, the workers’ compensation carrier for claimant’s employer was directed, in separate awards, to pay claimant a total of $400 per week—the maximum allowed, at the relevant time, under Workers’ Compensation Law § 15 (6). Though the disabilities caused by the hip and back injuries were designated as “temporary,” nothing in the record indicates that these $400 weekly payments have ever been discontinued.

On September 21, 2007, a Workers’ Compensation Law Judge made an award for the hearing loss claim. Claimant was found to have a permanent partial disability, entitling him to a schedule loss of use award under Workers’ Compensation Law *181§ 15 (3). As we explained in Matter of LaCroix v Syracuse Exec. Air Serv., Inc. (8 NY3d 348, 353 [2007]):

“[T]he [Workers’ Compensation Law] provides compensation for four different types of injury: permanent total disability, temporary total disability, permanent partial disability and temporary partial disability (Workers’ Compensation Law § 15 [1], [2], [3], [5]). In the case of permanent total disability, an employee is awarded payment of a percentage of wages during the continuance of the disability; the same is true for temporary total disability and temporary partial disability (see Workers’ Compensation Law § 15 [1], [2], [5]). Permanent partial disability, however, is called a schedule loss of use award because the statute assigns—as by a ‘schedule’—a fixed number of lost weeks’ compensation according to the bodily member injured (see Workers’ Compensation Law § 15 [3]).”

The Judge in this case found that claimant’s hearing loss entitled him to 32.145 weeks of benefits at the rate of $400 per week; the award specified a period from September 27, 2005 (the “date of disablement” found by the Judge) to May 10, 2006. After considering the carrier’s objections, the Judge concluded on November 23, 2007 that the schedule award was “currently payable in full,” notwithstanding the fact that claimant had received during the period in question, and was still receiving, $400 per week for his other claims. The Judge found the issue to be controlled by Matter of Miller v North Syracuse Cent. School Dist. (1 AD3d 691, 692 [3d Dept 2003]), in which the Appellate Division held that because a schedule award “is not allocable to any particular period,” it “cannot be deemed to overlap with” a temporary total disability award.

Also relying on Miller, a panel of the Workers’ Compensation Board affirmed the Judge’s order and the Appellate Division affirmed the Board’s decision (see Matter of Schmidt v Falls Dodge, Inc., 67 AD3d 1303 [3d Dept 2009]). We granted leave to appeal (16 NY3d 714 [2011]), and now reverse.

II

Workers’ Compensation Law § 15 (6) (a) says, in relevant part:

“Compensation for permanent or temporary partial disability, or for permanent or temporary total disability *182due to an accident or disablement resulting from an occupational disease that occurs ... on or after July first, nineteen hundred ninety-two [and before July one, two thousand seven], shall not exceed four hundred dollars per week.”

The Board and the Appellate Division have held in this case that claimant was entitled to receive $800 per week for a period of roughly 32 weeks. That result cannot be squared with the cap imposed by section 15 (6). The Appellate Division’s decision in Miller, which upheld a similar award, is incorrect and should not be followed.

The basis for the Miller court’s conclusion was that although Workers’ Compensation Law § 25 (1) (b) (until its amendment by L 2009, ch 351, § 1) required “periodic payment” of schedule awards (LaCroix, 8 NY3d at 355), the allocation of such awards to any particular period of time is arbitrary. A schedule award is compensation for a partial permanent disability, not a disability existing only during the weeks when the award is paid. Therefore, under the reasoning of Miller, there is no reason why an employee who suffers a temporary disability from one injury, and a permanent partial disability from another, cannot receive both awards—periodic payments for the temporary disability, and a schedule award for the permanent one.

This reasoning is sound as far as it goes. There is no reason why a claimant may not recover a schedule loss of use award in addition to a temporary disability award. The Miller court erred, however, in allowing a claimant to recover both at the same time, with the result that weekly payments exceeded the statutory cap. A claimant entitled to a schedule award that is to be paid periodically must wait until his other disability payments have ceased, or have dipped below the cap, to be paid his schedule award.

A contrary holding would not only contradict the plain language of section 15 (6), but would produce anomalous results. A worker who was permanently totally disabled in 2005—a quadriplegic, for example—can receive no more than $400 per week for his or her disability. It makes no sense for a worker who suffered a hip injury, lower back pain and hearing loss in that year to receive $800 per week. Nor can it be said that time will eliminate the anomaly—i.e., that in the long run no claimant will recover an average of more than $400 per week— because no one can say when, if ever, a “temporary” disability *183will end. Disabilities initially labeled “temporary” may be reclassified as permanent (indeed, the carrier in this case has annexed to its brief documents showing that claimant’s back sprain has now been so reclassified); or they may turn out to be permanent in fact. In such a case, the rule of Miller would permit a partially disabled claimant to recover, over his or her working life, more than a totally disabled one.

We therefore hold that periodic payments of a schedule loss of use award must be deferred to the extent that those payments, when combined with payments of another disability award, would exceed the cap imposed by Workers’ Compensation Law § 15 (6). We hold no more than this, and do not decide what implications, if any, our holding may or may not have for cases governed by the 2009 amendment to section 25 (1) (b): that section, as amended, now says that schedule loss of use awards “shall be payable in one lump sum, without commutation to present value upon the request of the injured employee.”

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division with directions to remand it to the Workers’ Compensation Board for further proceedings in accordance with this opinion.