The New York Court of Appeals is on the verge of a decision which is likely to have a profound impact on the expectations of permanently partially disabled injured workers and their obligation to mitigate damages under the Workers’ Compensation Law.

On March 20, 2012 the court heard oral argument on Zamora v. New York Neurologic Associates, 79 A.D.3d 1471 (3rd Dept. 2010). In Zamora, the claimant was classified with a permanent partial disability based on injuries to the neck and left shoulder. After leaving the employ of New York Neurologic Associates, the claimant held two jobs with other medical institutions before she stopped working altogether. Thereafter, she posted her resume online but performed no other independent job search. The few jobs for which she did apply through these websites were jobs she was incapable of doing based on her permanent partial disability.

The Workers’ Compensation Board suspended the claimant’s indemnity benefits based on her failure to make a good-faith search for work. The Appellate Division, in a split 3-2 decision, later reversed the Board, holding that the claimant was entitled to an inference that her lost wages were the result of her permanent partial disability, and that it was the employer/insurance carrier’s burden to prove otherwise. The Appellate Division did not believe the lack of an adequate job search was sufficient to rebut that inference.

In the recent oral argument, the Court of Appeals took great interest in this issue. Based on their questioning of the attorneys, it was clear that they are weighing whether a permanently partially disabled individual has the right to collect their benefits and “sit on the beach,” as one judge put it, or whether the injured worker should mitigate damages and contribute to society by working, or attempting to find employment, in whatever capacity they are capable.

This decision will have a profound impact on how cases involving permanent partial disabilities are defended in New York. The court can craft a decision which will be a significant victory for the defense bar, a significant victory for injured workers, or perhaps lay the issue back in the lap of the Workers’ Compensation Board. Stay tuned to future Goldberg Segalla alerts to find out what happens; the decision should be released within weeks.

For more information on how this may impact your business, please contact:

• Sean J. McKinley (516.281.9833; smckinley@goldbergsegalla.com)
• Damon M. Gruber (716.566.5491; dgruber@goldbergsegalla.com)
• S. Philip Unwin (585.295.8340; punwin@goldbergsegalla.com)
• Sean P. Beiter (716.566.5409; sbeiter@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Labor and Employment Practice Group