Paying Present Value of lifetime awards into aggregate trust fund upheld

In 2007 New York’s Workers’ Compensation law was changed to eliminate the possibility of ‘lifetime’ partial disability benefits. Instead, awards of partial permanent disability are now subject to a ‘capped’ number of weeks. Benefits for injuries resulting in permanent disability that occurring after March 13, 2007 are subject to ‘week capping.’
The 2007 changes in the law also created an ‘Aggregate Trust Fund.’ Under the new law, the carrier must pay the ‘present value’ of any permanent partial disability directly into the Aggregate Trust Fund, which then doles out the payments to the claimant.

There have been a number of cases where the claimant was injured before March 13, 2007, but not classified as having a permanent partial disability until after July 1, 2007. Employers in this circumstance DO NOT get the benefit of a ‘capped’ number of weeks – because the injury occurred before the reform legislation became law on March 13, 2007. Employers in this circumstance MUST deposit the ‘present value’ of the claimant’s (potentially) lifetime benefit into the Aggregate Trust Fund.

Employers and insurance carriers argued that the value of the potentially-lifetime benefits was ‘speculative’ and they would be required to make enormous deposits with the Aggregate Trust Fund.

This matter came before the Appellate Division which ruled that
(1) cases where the injury occurred before the new law was enacted do not get the benefit of capped weeks; and
(2) deposit of permanent partial awards not subject to capping must be done. The carriers were directed to deposit funds as computed by the Workers’ Compensation Board.

Case: Matter of Garcia v. Wings Digital, (N.Y. App. Div. decided October 14, 2010).

Greg Lois is the managing partner of LOIS LLC and dedicates his practice to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016-2019 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or