IN THE MATTER OF MARIE D. VOLCJAK, CLAIMANT, v. CHERRY LANE MOTORS, INC., ET
AL., RESPONDENTS. WORKERS' COMPENSATION BOARD, APPELLANT. (PROCEEDING NO. 1)
/ IN THE MATTER OF CAMILLE COSTA, CLAIMANT, v. CHARLES F. NOYES, ET AL.,
RESPONDENTS. WORKERS' COMPENSATION BOARD, APPELLANT. (PROCEEDING NO. 2)
79 N.Y.2d 962, 591 N.E.2d 1181, 582 N.Y.S.2d 995 (1992).
April 2, 1992
3 No. 51
Decided April 2, 1992
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Theresa E. Wolinski, for Appellant.
Joel M. Gluck, for Respondents.
MEMORANDUM:
The order of the Appellate Division should be affirmed, with costs.
In each case, the claimant was almost 60 years old when her husband
died of injuries sustained in the course of employment. Upon turning
60, claimants became eligible for, and shortly thereafter began
receiving, Social Security survivors' benefits. When the workers'
compensation death benefit awards were rendered, claimants were
receiving survivors' benefits, and thus under the plain language of
Workers' Compensation Law § 16(1-c), the Board should have applied the
statutory offset.
That section provides, in pertinent part:
* * * Where the death occurs on or after January (1, 1978), and the
spouse is receiving the survivors insurance benefits under the
social security act, the death benefit payable under this section
shall be reduced in accordance with the provisions of table No. 1
below * * * (Emphasis added.)
As former Presiding Justice Mahoney, writing for a unanimous Appellate
Division, correctly held, the proper inquiry under this statute is
whether, at the time of an award of death benefits, the spouse "is
receiving" survivors' benefits (see, Matter of Goodman v Pollio Dairy
Products, 147 AD2d 833, 835, lv denied 74 NY2d 606 (applicability of
offset "is to be determined as of the date of the award of benefits");
Matter of Washington v Vogue Metalcraft, 91 AD2d 80 (no offset where
SNIPPETS:
IN THE MATTER OF MARIE D. VOLCJAK, CLAIMANT, v. CHERRY LANE MOTORS, INC., ET
AL., RESPONDENTS.
WORKERS' COMPENSATION BOARD, APPELLANT.
(PROCEEDING NO. 1)
This memorandum is uncorrected and subject to revision before publication in the New York
The order of the Appellate Division should be affirmed, with costs.
Upon turning 60, claimants became eligible for, and shortly thereafter began receiving,
When the workers' compensation death benefit awards were rendered, claimants were receiving
* * * Where the death occurs on or after January, and the spouse is receiving the survivors
As former Presiding Justice Mahoney, writing for a unanimous Appellate Division, correctly
We reject the Board's argument that the statute's reference to date of death evinces a
The statutory reference to death occurring on or after January 1, 1978 simply reflects the
That provision merely makes clear that in computing the offset, "any increase in benefits
Chief Judge Wachtler and Judges Kaye, Alexander, Titone, Hancock and Bellacosa concur.
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