Appellate Division, Third Department's Recent Decision Impacts Workers' Compensation Practice

The Appellate Division, Third Department in Burns v. Varriale determined the following issue: whether the value of future workers' compensation benefits to be awarded to a claimant with a nonscheduled permanent, partial disability is speculative.  The Third Department held that the value is speculative.

The case is important because it impacts the way courts apportion a workers' compensation carrier's share of litigation costs a worker expends in commencing a successful lawsuit against a third party regarding the injury.  This case puts a glean on an older New York Court of Appeals' case, Matter of Kelly v. State Ins. Fund, 60 N.Y.2d 131 (1983).  The opinion clearly explains the mechanisms Workers' Compensation Law sec. 29, among others, puts in place to protect workers in these contexts.

Thank you to Troy from The Disabled Worker Blog for calling my attention to this case.  Hopefully Troy and his readers can offer some insight into the impact of the case.