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

May 4, 2012

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worker is adjudged PPD, the employer’s insurer can terminate compensation on the ground that the worker has voluntarily withdrawn from the labor market, i.e., the worker is not looking for work.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   Nonetheless, the insurance company sought to cut-off her compensation on the ground that she had voluntarily withdrawn from the labor market.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,


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

May 3, 2012

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,

Getting a Recovery for Your Attorney’s Fee in Accident Cases and Insurance Lawsuits

April 19, 2012

Clients ask  whether they can separately recover their legal fees on top of the recovery for their injury or damage?  Unfortunately, the answer is “no.”

This question makes sense in that if the defendant did not injure the client, the client would not be put to the expense of hiring an attorney to get a recovery.  After all, the client is not profiting from the lawsuit.  He is merely being made “whole” after a loss.   

Under the so-called “American rule”, which is recognized in New York, each party of the lawsuit is responsible for his own legal costs.  In comparison, under the “English rule”, the winner can recover his legal costs against the losing side.

A disadvantage of the American rule is that the injured party is not made “whole”.  He must pay a portion of his recovery for his legal fees.  On the other hand, an advantage is that a losing plaintiff will not burdened with defendant’s legal costs if defendant wins.

 An exception to the rule is where either statute or a contract provides for the award of legal fees.  But, as a general rule legal fees cannot be recovered in personal injury, property damage, and breach of insurance cases.

Mark E. Seitelman, 4/19/12,

Getting a Recovery for Work Place Injuries; Workers’ Compensation Lost Income Rates

March 23, 2012

People injured at work are entitled to lost income under workers’ compensation.

These are the maximum weekly income rates:

For accidents occurring within these dates:

7/1/07 to 7/1/08            $500.00

7/1/08 to 7/1/09            $550.00

7/1/09 to 7/1/10            $600.00

7/1/10 to 7/1/11            $739.83

7/1/11 to 7/1/12            $772.96

For example, if your accident occurred on August 1, 2007, your maximum weekly income rate would be $500.   If you accident occurred on July 10, 2010, your maximum weekly rate would $739.83.

Unfortunately, the weekly rate does not increase during the worker’s life.  In other words, a person receiving $500 per week based on an August 1, 2007, accident would receive the same rate today as well as the future.  

The rates effective July 1, 2012, have not been set by the Workers’ Compensation Board.  The rates are based on the weekly average wage of New Yorkers.

Sadly, there has been no similar increase in lost income for no fault and state mandated disability.  In an automobile accident, the no fault income rate has been fixed at the lower of either $2,000 per month or 80% of the person’s monthly wages.  On the disability side, New York State disability is still set at the shockingly low rate of $170 per week. 

Ironically, the workers’ compensation rates were changed to keep-up with no fault.  The compensation rates had lagged behind no fault’s rates, and working men and women could not survive on the low weekly wage of $400 per week under the old law.  Now, the compensation rate exceeds no fault.  We look to the legislature to correct this inequality of lost income for victims of accidents.     

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

Mark E. Seitelman, 8/23/12,  

I would like to acknowledge our workers’ compensation counsel for providing this information.  Thank you, Robert Bergman of Fogelgaren, Forman & Bergman of New York City.

$450,000 Settlement for Injured Supermarket Worker

November 7, 2011

We obtained a settlement of $450,000 for an injured supermarket worker.

The client sustained lumbar herniated discs (no surgery) when shelving fell on him in his store.

       An illustration of shelving end caps

The store was undergoing a renovation.  A pallet of end caps was delivered to the loading dock.  End caps are installed at the end of aisle shelves, and they are tall and heavy.  They were supposed to be wrapped, but someone unwrapped them allowing the bunch to become unstable. 

While waiting for the freight elevator, the  end caps fell upon the unsuspecting worker, one at a time, similar to falling dominoes.

Our case was against the general contractor.  The worker collected workers’ compensation benefits from his employer, the supermarket. 

If you have been injured in a work  accident,  please feel free to call me for a free consultation at 800-581-1434 or write to

Prior case results do not guarantee a similar outcome.

Mark E. Seitelman, 11/7/11,

Mark E. Seitelman Is in Super Lawyers

October 1, 2010

    I am pleased to announce that I am in the 2010 edition of Super Lawyers and that I am featured in a profile in a special advertising supplement to The New York Times Magazine (Sunday, October 3rd). 

The same profile will appear in the free-standing Super Lawyers magazine which is being mailed to all the lawyers in Metro New York.  

The New York Times     Only 5% of New Y0rk attorneys are elected into Super Lawyers.  They are nominated by fellow lawyers, and attorneys enter Super Lawyers based on their credentials, experience, and reputation for excellence and integrity.

I have been named a Super Lawyer in the following fields:

  1. plaintiffs’ personal injury (general);
  2. medical malpractice; and
  3. insurance coverage.

I am honored to be selected again into the ranks of Super Lawyers.  This has been my 4th year.  I thank my clients and colleagues for allowing me to be of service to them.

Mark E. Seitelman, 10/1/10,

See an Attorney Early; Do Not Let Time Deadlines Pass

August 16, 2010

Every once in a while a client comes to us when it is too late.  

I discussed the prudence of seeing an attorney early in a prior post.

Last week a client asked our help on the following case:

Mrs. Mary Moore sustained a substantial loss of  her personal property due to a flooded basement.  The flood was caused by construction next door.  The contractor struck a water main.

There appears to be no question that the contractor was negligent.  His insurance company paid other people damaged by the flood.

Mrs. Moore sustained about $1,000,000 in personal property damage, such as damaged artwork, antique furniture, collectibles, and a vast designer clothing collection which included many unworn garments with their tags.

First, Mrs. Moore sought recovery from her own homeowner’s insurer, Allstate.  About 2 years after the flood, Allstate paid its full limits of $350,000.  She then sought to collect $650,000 from the contractor’s insurance company, Old State Dominion Insurance Company.

Mrs. Moore engaged in much negotiation with Old State’s representative.  Documentation was exchanged, and there were inspections of the property.

According to Mrs. Moore Old State’s adjustor told Mrs. Moore a number of times that a “claim must be filed no later than July 8th”, which was 3 years from the flood.  Mrs. Moore took it to mean that she must send-in all of her claims documentation.  There was also a conversation where Old State’s adjustor’s asked whether Mrs. Moore hired an attorney.  Mrs. Moore answered “no”.  “Good” was the adjustor’s response because “we can settle faster without an attorney.”

Mrs. Moore sent extensive and very organized paperwork supporting her claim to Old State before the 3 year deadline.  On July 16th, a week after  the 3 year anniversary, Mrs. Moore and the adjustor had an all day meeting to review the claim submission.  After this session another meeting was planned for August 2nd in which numbers would be discussed.

However, that August 2nd meeting was cancelled.  Old State sent a denial letter to Mrs. Moore on July 28th.  The claim was denied since suit was not filed within the 3 year statute of limitations.

We could not help Mrs. Moore.  She failed to file suit before the statute of limitations expired.  If suit had been filed, negotiations could have continued and may have led to an eventual settlement.

The law has a strong policy in upholding statutes of limitations.  The law favors  an end to claims and lawsuits.  In order to claim that the statute of limitations would not apply, we would have to show fraud by the insurance company.  Negotiation before or after the deadline will not be deemed a waiver of the statute of limitations.  Furthermore, there was no fraud in the adjustor’s statement that it was good that an attorney was not hired.  This was not tantamount to lulling the client into not hiring an attorney.   Furthermore, there was no offer made which could cause the client to think that the case was settled.  In sum, we could not show any of the extraordinary circumstances which would allow the case to proceed.

The lesson for clients is to consult with an attorney as soon as possible after a loss or an injury.  An injured client should be aware that there are strict time limits in which to pursue a claim or lawsuit.  Defendant will take every advantage of the statute of limitations which is a “slam dunk” defense.  

Mark E. Seitelman, 8/16/10,

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