While we are on vacation we are redesigning our firm blog.
Please watch for our new format, and enjoy your summer.
Mark E. Seitelman
While we are on vacation we are redesigning our firm blog.
Please watch for our new format, and enjoy your summer.
Mark E. Seitelman
The Huffington Post reports that Jewish West Point cadets helped clean one of the cemeteries of the Hebrew Free Burial Association as part of a community outreach program of their Hillel group. See “Jewish Soldiers Perform Selfless Acts of Kindness”.
The cadets worked in the Silver Lake Cemetery in Staten Island, New York. The Silver Lake Cemetery is the oldest cemetery of Hebrew Free Burial, and it is full. The cemetery has become overgrown and requires periodic clearing and clean-up of dead and fallen trees. Hebrew Free Burial has another cemetery in Richmond County which is still accepting burials.
Hebrew Free Burial provides a free and proper Jewish burial to the forgetten, the poor, the elderly, the homeless, and the sick. It buried numerous victims of the Triangle Shirtwaist Factory Fire. Their families could not afford a proper burial, and Hebrew Free Burial stepped-in.
We commend the cadets for helping those who cannot say thanks.
Our office manager, Minna Monte Seitelman, is proud to be the treasurer of this fine charity.
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worker is adjudged PPD, the employer’s insurer can terminate compensation on the ground that the worker has voluntarily withdrawn from the labor market, i.e., the worker is not looking for work.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 email@example.com.
Mark E. Seitelman, 5/4/12, www.seitelman.com.
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.
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 firstname.lastname@example.org.
Mark E. Seitelman, 5/2/12, www.seitelman.com.
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, www.seitelman.com.
New York is unique regarding recovery from injuries from a domestic animal.
New York requires that the injured person prove that the animal had prior, violent propensities. It is of no moment if the animal’s owner were negligent.
This rule has been repeated in two recent cases from the Appellate Division, Third Department.
In Hastings v. Savue, plaintiff was injured when her car collided with a cow. The cow had wandered from defendant’s farm, and the injured plaintiff claimed that the owners were negligent in allowing the cow to wander onto an adjacent highway.
The court dismissed the case on the basis that there was no showing that the cow had vicious or abnormal propensities that caused the accident, such as a history of escape. The court noted “discomfort” with the rule, but, nonetheless it was constrained to dismiss the case based on the law.
In Bloomer v. Shauger, a distraught horse injured plaintiff. In an unusual set of facts, Whiskey’s companion horse of more than 20 years, Topper, was unable to stand and had to be put-down. Defendant put-down Topper in view of Whiskey. During the burial, Whiskey was distraught and upset. It was pacing back and forth searching for Topper. Plaintiff, a next door neighbor, heard the commotion and agreed to help. Plaintiff tried to comfort and pet Whiskey. The owner went to get a lead line. Whiskey was calming, but the owner reappeared with a lead line, and Whiskey abruptly pulled-back his head. Plaintiff’s finger was injured when it was caught in the halter.
The court dismissed the case. It noted that there is no liability for injury from a domestic animal unless the animal displayed prior, violent propensities. The court noted that there may have been negligence by the owner in allowing Whiskey to witness the death and burial of Topper, however, there still must be proof that the animal had a violent history. Whiskey’s nervousness or agitation before the accident was not evidence of prior, violent propensities. In this case, the horse’s conduct was typical for a horse.
It is noteworthy that the courts treat large, domestic farm animals in the same manner as household dogs and cats.
If you have been injured in an animal attack, please feel free to contact me for a free consultation at either 800-581-1434 or email@example.com.
Mark E. Seitelman, 4/16/12, www.seitelman.com.
My wife, Minna, and I have the great honor of receiving the “Defenders of Israel” award at the annual dinner of the American Friends of Laniado Hospital/Sanz Medical Center.
It is the sole hospital serving Netanya, Israel, a community of 300,000. It has 6,000 births a year. Its founding principle is to treat ALL with compassion and the best in medical care. To further this principle, doctors and nurses sign a “no strike” contract so that there is never an interruption in patient care.
A student in its nursing school
The dinner will be held on the evening of Sunday, April 29th, at the Museum of Jewish Heritage, a Living Memorial to the Holocaust. We also support the Museum and its fine work.
Minna and I support this hospital and its magnificent work and accomplishments. We deeply appreciate this honor.
Mark E. Seitelman, 4/12/12, www.seitelman.com.