Getting a Recovery for Work Injuries and the Erosion of Workers’ Rights

Although we do not handle the workers’ compensation part of a case, we often get involved since workers’ compensation affects the client’s accident lawsuit.

Unfortunately, there has been a continuing diminution of rights in workers’ compensation.  The courts have been chipping away at workers’ rights little by little.  This is a deplorable situation.

Two new Court of Appeals decision illustrate this trend.  See Zamora v. New York Neurologic Associates (No. 55, May 1, 2012) and Schmidt v. Falls Dodge (No. 76, May 1, 2012).

This post will discuss the Schmidt case.  The Zamora decision will be discussed in a future post.

Schmidt was a collision shop repairman who suffered injuries from three separate accidents on the job in 2005.  First, he slipped on ice and hurt his back and hip.  Second, he suffered low back sprain.  Third, Schmidt suffered a permanent hearing loss due to a loud noise in the garage.

Schmidt submitted and received compensation benefits for all three claims.  He could not work, and he was awarded the then maximum wage loss benefit of $400 per week.  It is interesting to note that the maximum wage has been raised for accidents after July 1, 2007, however, Schmidt was locked-into the then maximum rate of $400 for life.  We have discussed the compensation wage benefit here and here.

On the hearing loss the Workers’ Compensation Board found that he was permanent partial disabled or “PPD”.  In addition to his regular, weekly payment of $400, he was entitled to a “scheduled award” for the permanent hearing loss of 32 weeks of wages at $400 per week, i.e., a total scheduled award of $12,800.

The issue was whether Schmidt was entitled to 32 weeks at $400 per week in addition to his regular benefit of $400 per week or whether Schmidt would only receive his regular $400 per week?

The Court of Appeals ruled that Schmidt was entitled only to his regular $400 per week.  He was not entitled to the extra 32 weeks.  The  reasoning is that the statute states that $400 is the maximum benefit.  To grant additional money would violate the statutory cap.  If the 32 week award were allowed to stand, Schmidt would receive $800 per week for 32 weeks in violation of the $400 weekly maximum.

Judge Ciparik sharply dissented.  She pointed-out that although there may be an overlap between the regular weekly payments of $400 and the 32 week scheduled award, this overlap is permissible in that the 32 week award is meant to replace lost earnings and future earning capacity.  There is no dispute that Schmidt cannot work.

Let us look a little deeper into the facts.  Schmidt was getting the paltry sum of $400 per week for lost wages.  He clearly earned more than that when he worked, but the maximum compensation was $400 in 2005.  Also, he would be stuck at that figure for life despite the fact over a lifetime there would be inflation and the possibility of higher earnings due to salary raises or changes his duties.  The Workers’ Compensation Board and the Appellate Division stated that he was entitled to the extra 32 weeks in that it compensates a permanent injury affecting future earning capacity.  However, the Court of Appeals has foreclosed him from getting the additional 32 weeks.  The court viewed this $12,800 as a windfall. 

The court noted that once Schmidt no longer gets his weekly, regular benefit, then he can collect the 32 weeks.  However, Schmidt is classified as PPD or permanent partial disabled.  That means that he will receive the regular $400 for life.  In other words, he will never see the money from the 32 weeks.  Therefore, the scheduled award is meaningless.

The one bright spot is that there was a change in the law in 2009.  The change allows the receipt of the scheduled award as a lump-sum.  However, this change came after Schmidt’s claim, and he did not benefit from it.

This case is part of a more disturbing trend that New York is no longer sympathetic to injured workers. 

If you have been involved in a workplace accident, please feel free to contact me at 800-581-1434 or write to

Mark E. Seitelman, 5/2/12,


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