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is adjudged PPD, the employer’s insurer can terminate compensation on the ground that the worker has voluntarily withdrawn from the labor market, i.e., the worker is not looking for work.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   Nonetheless, the insurance company sought to cut-off her compensation on the ground that she had voluntarily withdrawn from the labor market.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

Mark E. Seitelman, 5/4/12, www.seitelman.com.

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 letters@seitelman.com.

Mark E. Seitelman, 5/2/12, www.seitelman.com.

The Hottest Issue in Personal Injury

What is the hottest issue in personal injury?

          It is liens. 

The hottest topic is not a new theory of recovery or increased damages.  It is saving the client’s settlement from a whole host of lienholders.  Liens can reduce significantly a client’s net recovery after case expenses and the attorney’s fee.

Both government entities and private insurers see personal injury recoveries as a new source of revenue.  They have attacked injured clients’ net recoveries to recoup more and more of their expenditures for medical bills, lost income, and other items unrelated to the case, such as unpaid parking tickets.   These lienholders seek not only past expenditures but an allowance for future expenditures!  This means that a client takes home less money.

Here are some examples of liens:

• Medicare;
• Health insurance payments;
• Medicaid;
• Public Assistance;
• Workers’ Compensation;
• Disability; 
• Unpaid parking tickets;and
• Unpaid child support.

Therefore, lienholders will be seeking a piece of the settlement.

We always endeavor to negotiate and reduce liens.  However, some lienholders do not negotiate their liens, such as Medicare. 

Unfortunately, getting the client’s settlement is not enough.  We not only have to get the client money, but we have to make sure that the client gets as much of it as possible.  

If you have a lien in your case, discuss it with your attorney.

Mark E. Seitelman, 11/17/10, www.seitelman.com.

Getting a Recovery for an Accident While Working for the Federal Government; Hillary Clinton Fractures Her Elbow Going to the White House

Yesterday Secretary of State Hillary Clinton fractured her elbow on the way to the White House. 

Last week the Supreme Court nominee, Judge Sonia Sotomayor, fractured her ankle while catching a flight to Washington, DC.  See our story on Judge Sotomayor here.

Secretary of State Clinton is expected to have surgery, an open reduction with internal fixation.  In comparison, the Judge’s fracture did not require surgery;  her treatment consisted of a closed reduction.  We wish them both full recoveries.

It is a coincidence that both were injured in the course of their employment.   Judge Sotomayor was going to the equivalent of  interviews for a job promotion with members of the Senate.  Secretary Clinton was going to meet the “boss” at the White House.  Both would be entitled to medical and lost income benefits under the federal government’s equivalent of workers’ compensation in that they were injured while working.

Federal government employees have an equivalent of New York workers’ compensation.  United States employees injured in the course of their employment are entitled to medical coverage and lost income during their recovery.

We have had US government employee-clients who have been injured while working.  

The federal equivalent of workers’ compensation precludes the federal employee from suing his employer, the USA.  Also, the injured employee cannot sue a fellow employee.  This is similar to New York’s workers’ compensation law.  However, a federal employee may have a lawsuit against a third-party who caused the accident.   

For example,

• the operator of a post office truck may sue the owner of the private truck that struck his USPO vehicle;
• the letter carrier may sue the homeowner when he is bitten by the dog; and
• the federal employee who is injured in a car accident may sue the other vehicle even where the government employee was using his private vehicle on federal business.  

Therefore, Judge Sotomayor and Secretary Clinton may have valid third-party actions.  However, I doubt that they will pursue lawsuits, and I doubt that they will call me for a free consultation. 

In any event, if you are employed by the US government and have been injured in an accident, please feel free to call me at 800-581-1434 or write to letters@seitelman.com for a free consultation.

Mark E. Seitelman, 6/18/09, www.seitelman.com.

Getting a Recovery for Work Place Accidents; NY Times Investigates the Workers’ Compensation System

The New York Times has done a three part investigation into New York’s workers’ compensation system.  See “A World of Hurt; For Injured Workers, a Costly Legal Swamp” (March 31, 2009).

   A scene from the Workers Compensation Board in Queens

The article merely scratches the surface of the problems with the workers’ compensation system, namely

• the great delays faced by workers in getting payment;
• the delays in getting a hearing; and
• the awards which no where fully and fairly compensate an injured worker who can no longer work.

The article profiled a worker who became homeless due to delays in payment and the small payments for lost wages.

Unfortunately, blue collar workers (construction, cooks, truck drivers, etc.) must rely on workers’ compensation which often is not enough for a living wage.

We recommend that you participate in your employer’s group disability insurance.  Some employers offer this insurance for a minimal charge to the employee.   If you can afford it, then you should also purchase your own private disability insurance.

If you have had a work place injury, please call me at 800-581-1434 for a free consultation to discuss both your workers’ compensation and lawsuit issues.

Mark E. Seitelman, 4/1/09, www.seitelman.com.