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

The courts have made it open hunting season on injured workers.

A recent Court of Appeals case, Zamora v. New York Neurologic Associates (May 1, 2012, No. 55) illustrates the courts’ recent trend of chipping away at the workers’ compensation law.  In our last post I discussed another case, Schmidt v. Falls Dodge, Inc.,

Zamora is important because it discusses a little known defense by employers’ insurers used to end compensation.  This defense is that the injured worker voluntarily withdrew from the job market by failing to look for work.  Even though an injured worker may be classified as permanently disabled, the law imposes an obligation that he look for some type of work.  This defense has been put forward recently by the insurance industry, and the Zamora case gives it legitimacy. 

Zamora states that even where the injured worker is declared permanent partial disabled or PPD, the Workers’ Compensation Board does not have to infer that subsequent wage loss was caused by these limitations.  The end result is that even if a worker is adjudged PPD, the employer’s insurer can terminate compensation on the ground that the worker has voluntarily withdrawn from the labor market, i.e., the worker is not looking for work. 

Zamora was a phlebotomist for a medical group.  In 2003 a computer monitor fell from a shelf and struck her upper back.  She suffered a torn tendon in her shoulder and two herniated discs in her cervical spine.  She eventually underwent spinal surgery in 2007.

Although Zamora returned to work, she was classified as PPD by the Workers’ Compensation Board .  However, after being classified as PPD, she ceased working due to the injuries in this accident as well as some unrelated health problems. 

Zamora attempted to return to work with less physical activity in general phlebotomy and customer service.  She held a couple of positions for a short time, but she was unable to hold them.  She attempted to find work with “lighter” physical requirements, but she could not find such positions.   Nonetheless, the insurance company sought to cut-off her compensation on the ground that she had voluntarily withdrawn from the labor market.

The Workers’ Compensation judge found that Zamora made a valid effort to find work and had not voluntarily removed herself from the labor market.  However, the insurance company appealed to the Workers’ Compensation Board which reversed.  The Board found that Zamora did not conduct a reasonable job search in looking for work within her limitations.  The case then went to the Appellate Division which reversed the Board.  The appellate court held that Zamora did not voluntarily withdraw from the labor market and that there was an inference that the injured worker did not remove herself from the labor pool by reason of her classification as PPD.

The Court of Appeals reversed.  It found that Zamora did withdraw from the labor force.  Therefore, she is not entitled to future wage loss.  It found that the “mere” classification of PPD does not allow the Board to infer that the worker did not remove herself from the work force and that the worker could continue to collect future wage loss. 

Without going into the technicalities of the decision, in so many words, the Court of Appeals has provided a stamp of approval to this defense.  Potentially, all workers classified as PPD must prove that they are looking for work. 

In a sharply worded dissent, Chief Judge Lippman notes that the defense of withdrawing from the labor market is not in the statute.  There is nothing in the statute which suggests that a PPD worker look for work as a prerequisite to receiving compensation payments.  

The dissent notes that 

The majority extends the rule regarding “attachment to labor market” beyond the limits that can be reasonably imposed on the application of such a rule when considering the remedial and humanitarian roots of the critically important statute that we address today.  Workers’ compensation benefits are intended to do what the name implies:  compensate workers for losses in wage earning capacity incurred due to work related injuries.  To impose barriers to access to those benefits, where there is no basis for such prerequisites, contravenes the law and violates basic principles of fairness for debilitated workers  injured in the course of the employment.

Unfortunately, I see this decision part of a trend of anti-worker decisions in the courts and Workers’ Compensation Board. 

If you have been injured on the job, please feel free to contact me for a free consultation at 800-581-1434 or write to

Mark E. Seitelman, 5/4/12,


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