NATIONAL COALITION OF CONCERNED LEGAL PROFESSIONALS

VOL. 23 NO. 3 JULY 2017 SUGGESTED DONATION $5.00

. ACall to End the U.S .

Blockade of Cuba
· ,:·James G. While, Esq.
. '. ?:- .;_·.,, ·---/ ;
··i ..
-. ,. ,.

Law Students,
Human Rights and
Clinical Learning
Michael E. Tigar, Esq.

All Good Things Come f·

to Those Who Wait

Illustration by Chuck Todd
 · Wat'kers' /!SQm ensatfqn; 'An lnsuraoce fnctustr' Windfall • , · · Vetctict 3

compensation legislation. American workers who injured

WORKERS'
COMPENSATION: AN
INSURANCE INDUSTRY
WINDFALL
by Geoffrey H, Schotter, Esq.
By the time of the industrial
revolution, workplace injuries
came to be the subject of lawsuits
by injured workers against
employers, wherein the injured
worker, as the plaintiff, bore the
burden of proving that the
employer was at fault in causing
the worker's injury. In the United
States, as in other industrializing
countries during most of the nineteenth century, employ-
ers were able to rely on a variety of affirmative defenses
that shifted blame for the injury back onto the worker
and wholly absolved the employer of any liability. 1
Toward the end of the nineteenth century, as industri-
alization became more dominant and workplace acci-
dents accordingly became more frequent and severe,
European countries began to enact workers' compensa-
tion legislation as a form of social insurance that would
mitigate the high-stakes, zero-sum and adversarial nature
of workplace accident litigation.' The first such modern
workers' compensation statute was enacted by Prussian
Chancellor Otto von Bismarck in 1884, on the heels of his
outlawing of the German Social Democratic Party in
1875. 3 Bismarck's Workers' Accident Insurance was one of
II 11
several carrots his government offered the German
working class in the form of welfare safety net policies,
alongside the "sticks" of political repression he inflicted
upon a growing socialist political movement in his coun-
try. Britain, France and Austria soon followed suit with
their own national workers' compensation statutes.•
Pitfalls of Workplace Injury Litigation
in the U.S.
By the turn of the twentieth century, however, the Unit-
ed States still lacked any comprehensive workers'
themselves on the job still had to bring negligence actions
against their employers in order to obtain any compensa-
tion for medical expenses and wage loss. resulting from
their injuries. These lawsuits were governed by the com-
mon tort law of the particular states in which they were
brought. While such law differed from state to state, in
each case the injured worker not only had to prove that the
employer's negligence caused the injury, but also had to
contend with the "unholy trinity" of affirmative defenses
available to the employer: contributory negligence,
assumption of risk, and the fellow servant rule.5
The contributory negligence defense barred recovery
if the worker's unreasonable conduct contributed even
slightly to the injury. 6 The assumption of risk defense
barred recovery for injuries arising from inherently haz-
ardous working conditions, on the theory that the work-
er knowingly accepted the risk of injury simply by taking
the job. 7 The fellow servant rule, meanwhile, was an
exception to the doctrine of respondeat superior - the rule
holding "masters" vicariously liable for torts committed
by their "servants" acting within the scope of employ-
ment - in that it precluded recovery from the employer
for injuries caused by a negligent co-worker. 8
Recent historians have criticized these three affirma-
tive defenses, especially the fellow servant rule, as a fab-
rication of nineteenth-century pro-employer state judi-
ciaries furthering a brutal class war strategy against the
working class. 9 However, the reality is more complicated.
The pre-industrial American work ethic, and the antebel-
lum ideology of free labor that it informed, placed a
heavy emphasis on the worker's own skill and on his
exercise of autonomous judgment and discretion over
the production process as an essential component of
republican self-government_lO As the country became
increasingly industrialized over the course of the nine-
teenth century, employers and managers sought to assert
greater levels of systematic regimentation and control
over a labor process that was increasingly mechanized
and automated.u While employers sought to accomplish
this objective by such means as strict time schedules,
more overseers and posted workshop regulations, work-
ers routinely pushed back against these attempts in an
effort to preserve the autonomy and discretion over pro-
duction that Americans traditionally considered to be
essential to republican liberty."
On the one hand, it can be argued that state courts in
the nineteenth century "weaponized" this traditional

Geoffrey H Schotter is licensed to practice law in New York State and is admitted to practice before the United States District
Courts for the Southern and Eastern Districts ofNew York. He received a BA from Cornell University and completed a joint JD/MA
program in law and legal history at Case Western Reserve University in Cleveland, Ohio. He was an editor of the Case Western
Reserve Law Review and a founding member of the Case Western Reserve Journal of Law, Technology and the Internet. After
completing a fellowship at the national office of the ACLU researching the growing crisis ofAmericas aging prisoner population,
Mr. Sch otter went into private practice. His primary focus is workers' compensation, and he also handles Social Security Disability
claims, employment discrimination cases, and Section 1983 civil rights cases.
 4 Verdict
ethic of the worker's autonomy over the labor process
by deriving from it the principles underlying affirmative
defenses that effectively
shifted the entire cost of
workplace injuries onto the
injured worker." Converse-
ly, it can be argued that the
existence of these affirma-
tive defenses incentivized
employers to take a hands-
off approach to the manage-
ment of the labor process and
to refrain from encroaching
on the worker's autonomy,
because the greater the
employer's involvement in
managing the work, the
greater likelihood that the
employer's affirmative defenses would fail in a lawsuit
by an injured employee. 14 Thus, although the nineteenth
century common law of workplace accidents was dra-
conian from the standpoint of the injured worker seeking
recovery, it functioned as a strong check on employers'
efforts to wrest discretion and control over the produc-
tion process from the workers.
After the Civil War, however, a nascent American
labor movement began to demand employer liability
reforms as the number and severity of industrial acci-
dents accelerated with the full development of U.S. indus-
try. 15 During the final third of the nineteenth century,
industrial development grew to the point where employ-
ers1 need to assert greater, more systematic control over
the labor process came to overpower the capacity of pre-
vailing state common law doctrines governing workplace
accidents to deter employers from encroaching too far
onto the worker's sphere of autonomy, lest they waive
their affirmative defenses. 16 As this encroachment became
more common, states began to enact legislation limiting
the scope of the common law defenses and courts found
employers increasingly liable in lawsuits by injured
workers. By the first decade of the twentieth century,
employers' liability for employee injuries (or insuring
against it) had become a significant cost of business,
Social Security Disability Hearings
277 Broadway, Suite 1010 • New York, NY 10007-2001
212.393.1300 • smjlegal@gmail.com • smjlegal.com
Werkers' Gall'I eli/satlon: ¥In Insurance lndustr Windfall
although the likelihood of an individual injured worker's
recovery against an employer remained far from certain."
The quid pro quo structure
underlying all modern
A1nerican Workers' cmnpen-
sation statutes - whereby
the injured worker is guaran-
teed medicbl coverage relat-
ed to the work accident and a
limited amount of monetary
compensation, regardless of
who is at fault, but in
exchange gives up the right
to recover a potentially far
greater monetary amount
from the employer in a com-
Illustration by Chuck Todd mon law negligence action
- was not an inevitable out-
come of the early twentieth-century impetus toward
employer liability reform.
Enactment of Workers' Compensation
Legislation in the United States
During the first decade of the twentieth century, the
U.S. labor movement gradually came to support work-
ers' compensation in principle, notwithstanding work-
ers' lingering concerns that such reforms were part of the
broader trend of the disappearance of their autonomy
within the production process. 18 By 1909, when New \
York's state legislature established what became known
as the Wainwright Commission to hold hearings
throughout the state inquiring into the feasibility of
employer liability reform, labor leaders had overwhelm-
ingly come to support the establishment of a workers'
compensation system. 19
The Wainwright Commission's findings provided
the basis in 1910 for New York's initial workers' com-
pensation statute, the Wainwright Act. 20 The law
applied only to workers employed in eight specific
occupations that were considered unusually dangerous,
including most construction jobs and jobs involving the
handling of electricity or explosives. 21 Accidents arising
SERCARZ & RIOPELLE, LLP
81 0 7TH AVE., SUITE 620
NEW YORK, NEW YORK 10019
1-21 2-586-4900
FAX: 1-212-586-1234
...- . W~rkeis' Gom ensation: 'JJ,n lnsura11c~ tnaijstrY, W1rittfall ·
from the inherent nature of these occupations were
compensable regardless of fault, unless they were
caused by the worker's serious and willful miscon-
duct.22 The amount of monetary compensation due to
the injured worker was determined by the worker's
actual daily earnings at the time of injury and the
dependence of others upon those earnings. 23 The maxi-
mum payment was $3,000.00 in the case of death and
$10.00 per week for eight years of disability. 24 Crucially,
injured workers whose accidents fell under the scope of
the act retained the option of bringing a negligence
action against the employer under the common law that
predated its adoption. 25
The following year, the New York Court of Appeals
struck down the Wainwright Act as unconstitutional in
Ives v. South B.R. Co. 26 The court prefaced its reasoning
with the observation that New York and the United
States, unlike many European countries that had enact-
ed workers' compensation laws, had written constitu-
tions whose express provisions supersede any economic
or social justifications for legislation that runs contrary
to them. 27 It then acknowledged that the traditional
common law affirmative defenses, upon which employ-
ers relied when sued by injured workers in negligence
actions, could be constitutionally curtailed or even abol-
ished by legislative action. 28 The court also conceded
11
that, our present system is uncertain, unscientific and
wasteful, and fosters a spirit of antagonism between
employer and employee which it is to the interests of the
state to remove."29 But it ultimately held that the act vio-
lated the right to property contained in the due process
clauses of the state and federal constitutions. 30
In essence, the court found that the act unconstitu-
tionally redistributed wealth from capital to labor with-
out compensating capital:
San Francisco Building and Construction
Jeffrey A. St. Clair
Attorney and Counselor at Law
St. Clair & Associates
16 Court Street, Suite 2901
Brooklyn, New York 11241
Tel: (718) 596-4466
Fax: (718) 237-1393
. ,• · Ve/aict 5
If the legislature can say to an employer, "you
must compensate your employee for an injury
not caused by you or by your fault," why can it
not go further and say to the man of wealth,
"you have more property than you· need and
your neighbor is so poor that he can barely
subsist; in the interest of natural justice you
must divide with your neighbor so that he and
his dependents shall not become a charge
upon the State?" The argument that the risk to
an employee should be borne by the employer
because it is inherent in the employment, may
be economically sound, but it is at war with the
legal principle that no employer can be com-
pelled to assume a risk which is inseparable
from the work of the employee, and which may
exist in spite of a degree of care by the
employer far greater than may be exacted by
the most drastic law. If it is competent to
impose upon an employer, who has omitted no
legal duty and has committed no wrong, a lia-
bility based solely upon a legislative fiat that
his business is inherently dangerous, it is
equally competent to visit upon him a special
tax for the support of hospitals and other char-
itable institutions, upon the theory that they are
devoted largely to the alleviation of ills primar-
ily due to his business. In its final and simple
analysis that is taking the property of A and
giving it to 8, and that cannot be done under
our Constitutions ... .
We conclude, therefore, that in its basic and
vital features the right given to the employee by
this statute, does not preserve to the employer
Trades Council AFL-CIO
salutes CCLP's fight
for meaningful legal recourse
for /ow-income workers
(415) 345-9333

' fHlei'lit{fiti : ', ' ,' ', ' · . · , Wotkers''Qomgensation: 'An' lnsurahd~ lndustr Win'f:lfalt,
the "due process" of law guaranteed by the
Constitutions, for it authorizes the taking of the
employer's property without his consent and
without his fault. 31
The court noted in closing, that although "it is within
the range of proper legislative action to give a workman
two remedies for a wrong when he had one before," it is
not a proper exercise of the state's police power to give
the worker a remedy for no wrong. 32
On March 25, 1911, the day after the Court of
Appeals decided Ives, a fire broke out in the Triangle
Shirtwaist Company's factory, which occupied the
eighth, ninth, and tenth floors of a building adjacent
to New York's Washington Square, resulting in the
deaths of some 150 mostly female immigrant factory
employees. 33 Until September 11, 2001, this was the
single deadliest workplace disaster in New York's his-
tory.34 The fire and its aftermath quickly led to New
York's adoption of a constitutional amendment
expressly authorizing the state legislature to enact
workers' compensation laws. 35
In 1913, soon after the amendment became law,
New York enacted a new workers' compensation
statute that, with various amendments over the years,
survives to this day. 36 The law, which went into effect
July 1, 1914, survived early challenges to its constitu-
tionality. In Jensen v. Southern Pac. Co.," the New York
Court of Appeals found that the new workers' com-
pensation act was "fundamentally different" from the
old one that Ives invalidated:
That involved in the Ives case made the
employer liable in a suit for damages though
without even imputable fault and regardless of
the fault of the injured employee short of
FORAGERS
CITY GROCER
•
56 ADAMS STREET
DUMBO * BROOKLYN * NY * 11201
FORAGERSMARKE~COM
PH 718 801 8400 * FAX 718 801 8401
7
!
i
serious and willful misconduct. This act protects
both employer and employee, the former from
wasteful suits and extravagant verdicts, the
latter from the expense, uncertainties and
delays of litigation in all cases and from the cer-
tainty of defeat if unable to establish a case of
actionable negligence. 38
In New York C.R. Co. v. White, 39 •the United States
Supreme Court found that the 1913 act did not violate the
due process clauses of either the state or federal constitu-
tion because, unlike the 1910 act, it did not give covered
injured workers the choice of pursuing workers' com-
pensation claims or bringing tort actions against their
employers for negligence:
The statute under consideration sets aside one
body of rules only to establish another system in
its place. If the employee is no longer able to
recover as much as before in case of being
injured through the employer's negligence, he is
entitled to moderate compensation in all cases
of injury, and has a certain and speedy remedy
without the difficulty and expense of establishing
negligence or proving the amount of the dam-
ages. Instead of assuming the entire conse-
quences of all ordinary risks of the occupation,
he assumes the consequences, in excess of the
scheduled compensation, of risks ordinary and
extraordinary. 40
The Court concluded by holding that "laws regulat-
ing the responsibility of employers for the injury or death
of employees arising out of the employment bear so close
a relation to the protection of the lives and safety of those
concerned that they properly may be regarded as coming
within the category of police regulations."41
SERRIN$ & ASSOCIATES LLC
233 BROADWAY, SUITE 2340
NEW YORK, NEW YORK 10279
DIRECT (212) 384-0202 Ext. 115
FAX (212) 233-3801
ALAN@SERRINSLAW.GOM
WWW.SERRINSLAW.GOM
Terms of Workers' Compensation Laws
The 1913 act originally covered a far wider variety of
occupations than the eight hazardous occupations covered
by the 1910 act, and today the Workers' Compensation
Law applies, with very few exceptions, to all occupations
within the state.42 It established a fund known as the New
York State Insurance Fund, which to this day functions as
a public insurer with whom employers may contract to
cover their injured employees.43 To
be in compliance with the
Workers' Compensation
Law, employers have the
option of purchasing a policy
from this fund, purchasing a
policy from a private insur-
ance carrier, or being self-
insured, which requires
them to maintain a certain
amount of cash in
reserve.44 Employers who
are not in compliance on the date
one of their employees is injured at work
are guilty of a criminal offense. 45
As the courts upholding the Workers' Compensa-
tion Law in its infancy noted so approvingly, workers
whose injuries are compensable under it are barred
from bringing common law tort actions against their
employers and may only file workers' compensation
claiins. 46 Two critical exceptions to this rule, however,
are that a worker alleging injury due to the intentional
tort of the employer or a coworker may elect to bring a
civil action in lieu of filing a workers' compensation
claim; and a worker who is injured while working for
an uninsured employer may elect lo bring even a civil
negligence action against the employer in lieu of filing
a workers' compensation claim., and in such an action,
the employer is barred from pleading any of the
traditional common law defenses upon which employ-
ers relied prior to the adoption of the Workers'
Compensation Law. 47
Injured workers with established48 claims are entitled to
medical coverage that is causally related to their work
RICHARD DORN
ATTORNEY AT LAW
LEVY RATNER, P.c.
80 Eighth Avenue, 8th Floor• New York, NY 10011~5126
Tel. (212) 627-8100 • Pax (212) 627-8182
rdorn@levyratner.com • www.levyratner.com
accidents49 and cash payments known as indemnity bene-
fits.50 Indemnity may include wage replacement benefits
that are paid on a week-to-week basis and, in certain cases,
fixed sums of money lo compensate for
the permanent loss or impairment of
specific body parts, known as
schedule loss of use awards.51
Ti1ere is a crucial distinction
in the modern Workers'
Compensation Law between
"impairment," which is a med-
ical determination as to loss of
bodily functioning made by a
qualified medical expert, and
"disability," which is a legal
determination as to loss of
ability to work or wage earn-
ing capacity resulting from
impairment. 52
An injured worker's dis-
ability is considered temporary
Illustration by Chuck Todd
for as long after the accident as
the worker is still recovering
and has not yet reached maxinmm medical in1provement. 53
When the worker is found to have reached maximum med-
ical in1provement, the remaining disability is considered
permanent. Disability, whether temporary or permanent,
can be total, meaning the worker cannot work in any capac-
ity at all, or partial, meaning the worker is capable of per-
forming certain types or work that conform to his or her
medical restrictions.54
The amount of weekly wage replacement indemnity
benefits lo which the injured worker is entitled is deter-
mined by the worker's average weekly wage during
the 52-week period preceding the date of accident. 55
Workers who are totally disabled are entitled to the
lesser of two-thirds of that average weekly wage or a
statutory weekly maximum that is determined by the
date of the accident. 56 Where the injured worker is par-
tially disabled, the degree of partial disability is
expressed as a percentage less than 100, and the work-
er is entitled to the lesser of that percentage of two-
thirds of the average weekly wage or the statutory
~Jl.qf~
ATTORNEY AT LAW
GINSBERG & WOLF, P.C. Tel: 212-227-0640
225 Broadway, Suite 3105 Fax: 212-227-4228
New York, N.Y. 10007 Email: rginsberg@ginsbergwolf.com
, 8 Verdict , , Wotk'ers' 'G°'m ~nsation: An}nsurance lridus"trM Windfall , ,

Comparison of Benefits for Permanent The statute assigns each schedulable body part or med-
Disability under Worker's Compensation. ical condition a certain number of weeks for 100 percent
loss of use - for example, 312 weeks of benefits at the
total disability rate for 100 percent loss of use of an
National Avcrage New York
arm. 64 The Workers' Compensation Board determines,
One arm $169,878 $252,299 on the basis of one or more doctors' opinions, what per-
One hand $144,930 $197,311 centage loss of use of that body part the injured worker
One thumb $42,432 $60,649 has - for example, 50 percent loss of use of an arm
One eye $96,700 $129,384 equals 156 weeks of benefits at the total disability rate.
One ear $38,050 $48,519 The injured worker then receives the product of the
One leg $153,221 $232,891 number of weeks his or her percentage loss of use yields
One foot $91,779 $165,773 and his or her total disability rate - for example, a
Big toe $23,436 $30,729 worker with an average weekly wage of $600.00 and a
50 percent schedule loss of use of an arm is entitled to
Figures from ProPublica. 156 weeks of benefits at $400.00 per week for a total of
$62,400.00. Any amount previously paid to the worker
weekly maximum. 57 There is also a minimum weekly in temporary disability benefits is deducted from the
benefit rate that is similarly determined by the date of schedule loss of use amount due to the worker. 65
the accident. 58 Where the injured worker who has reached maxi-
Injured workers who are temporarily disabled, mum medical improvement has permanent impair-
whether totally or partially, collect weekly wage replace- ments that are not on the enumerated list of schedulable
ment indemnity benefit payments for all time periods body parts and medical conditions (or whose schedula-
during which they are not working or working at ble impairments are of such a high severity or number as
reduced earnings as a result of their established to affect the worker's overall ability to function), the
injuries. 59 When the injured worker reached maximum worker is classified with a permanent disability. 66 Classi-
medical improvement, the type of indemnity benefits, if fication indemnity benefits are awarded in the exact
any, that he or she receives thereafter depends on the same manner as all temporary disability benefits. They
type of permanent impairment that is found to remain. are paid on a week-to-week basis at a rate determined
If the impairment only affects one or more of a list of by the worker's average weekly wage and degree of dis-
enumerated body parts and medical conditions, which ability from work. 67 Thus, unlike schedule loss of use
include arms, legs, hands, feet, eyes, fingers, toes, loss of awards, classification awards are only payable to injured
hearing, loss of vision, and head or facial disfigure- workers who are not working or working at reduced
ment,60 the injured worker receives a schedule loss of use earnings as a result of their established injuries. 68 Also,
award. The purpose of a schedule loss of use award is to unlike schedule loss of use awards, classification awards
compensate the worker for a permanent partial disability are not invariably paid at the total weekly disability rate
by quantifying the worker's future lost earnings resulting but, like temporary disability benefits, are paid at a
from the impairment of one or more schedulable body lower rate where the disability is partial. 69
parts or functions. 61 Thus, even workers who have Prior to 2007, injured workers who were classified with
returned to their jobs without any restrictions can receive permanent disabilities were entitled to lifetime weekly
schedule loss of use awards. 62 indemnity benefits whether their disabilities were total or
The award consists of a fixed sum of money but is partial. 70 Such injured workers whose accidents occurred
calculated in weeks by multiplying the injured worker's after 2007, however, are only entitled to lifetime weekly
total disability rate by the number of weeks awarded. 63 indemnity benefits if their permanent disability is total.71

Stutchman Forensic Laboratory

Audio & Video Forensics, Forensic Photography Irving Botwinick
President
Gregg Stutchman Woolworth Building
Steve Buller 233 Broadway
Forensic analysis New York, NY 10279

(707) 257-0828 421 Walnut Street, Suite 120 (212) 233-3346

Fax: (707) 257-3240 Napa. CA 94559 •LICENSED PRIVATE INVESTIGATORS• FAX (212) 349-0338
•PROCESS SERVERS• llONDED•
stutchman@earthlink.net www.stutchmanforensic.com
 If their permanent disability is partial, then the duration of
their future weekly indemnity benefits is capped at a num-
ber of weeks that ranges from 225 to 525, depending on
what the Workers' Compensation Board determines their
permanent loss of wage earning capacity to be. 72
Unlike with schedule loss of use awards, no previ-
ously paid benefits are deducted from classification
awards. For accidents occurring before April of 2017,
the finite period during which non-schedule permanent
partial disability awards are payable begins on the date
on which the injured worker is found to have reached
maximum medical improvement, and the number of
future weeks of such benefits is in no way affected by
the duration of the prior period of temporary disabili-
ty.73 However, on April 9, 2017, the New York State leg-
islature passed a series of reforms to the Workers' Com-
pensation Law as part of its budget process that allows
carriers in non-schedule cases to "take credit" for all
weeks of disability over 130, such that the finite period
during which non-schedule permanent partial disabili-
ty awards are payable begins on the earlier of the date
on which the injured worker is found to have reached
maximum medical improvement or the date on which
the 130th week of the injured worker's temporary dis-
ability falls, thus further truncating the time during
which workers classified with permanent partial dis-
abilities may receive benefits. 74
The Workers' Compensation Law created the
Workers' Compensation Board to adjudicate workers'
compensation claims. 75 Initially, the Board was a
division of the New York Department of Labor, but in
1945 it became a separate state administrative agency. 76
The Board consists of a chair and thirteen commission-
ers, at least four of whom are attorneys. 77 It maintains
hearing locations throughout the state where adminis-
trative law judges hear the claims and make findings on
such issues as whether the injured worker has a com-
pensable injury, whether the injured worker is disabled
and to what degree, whether the injured worker has
reached maximum medical improvement, and so forth. 78
These decisions are initially appealable to a three-com-
missioner panel whose decisions, in turn, are appealable
to the full 13-commissioner Board, to the Third Judicial
LAW OFFICES OF
RICHARD A. ZIMMERMAN
233 BROADWAY, SUITE 2208
NEW YORK, NY 10279
(212) 962·1818
Good Luck, CCLP
Department of the Appellate Division of the New York
Supreme Court, or both. 79 Appellate Division workers'
compensation decisions are appealable to the Court of
Appeals under the same rules as apply to appeals of all
Appellate Division decisions to the Court of Appeals. 80
Since its enactment more than a century ago, the
Workers' Compensation Law has undergone several
waves of reform. For much· of the twentieth century,
these reforms were generally progressive and pro-
worker. In 1920, the statute was amended to cover cer-
tain occupational diseases, which it defines as ua
disease resulting from the nature of employment and
contracted therein," 81 and is distinguished frmn an
accident by the fact that it cannot be said to have
occurred on a specific date or even during a specific
finite time period within the time span of the worker's
employment. 82 In 1935, the statute was again amended
to include all occupational diseases. 83
In the 1970s, the state legislature added a provision
to the law creating a new claim for retaliation by an
employer for attempting lo obtain workers' compensa-
tion benefits, 84 and the Court of Appeals expressly held
that purely mental claims are compensable. 85 The court
allowed "a primary defendant in an action to seek
unlimited contribution or indemnification from an
employer as a third party... although a direct action
against the employer would be barred by
the exclusivity provisions of the workers' com-
pensation system. " 86
Drives to Cut Back Workers' Coverage
By the 1990s, however, business and insurance lob-
bies in New York and other states had begun to invest
heavily in promoting the narrative to lawmakers that
workers' compensation costs were spiraling out of
control for insurance carriers, resulting in skyrocketing
premiums for employers that drove employers out of
the state. 87 A certain political cycle arose whereby
employers periodically sound the alarm that they are
facing a "crisis" in profitability resulting from uncon-
trollable workers' compensation premiums and that
"reform" is needed to bring the premiums back under
~q'J,
:1..t>
b~
'\1 , .. .. ··
.. ..
q ... ··
.. •..
 allowed for the first time settlement agreements between
100%
injured workers and employers and insurance carriers
releasing the latter permanently from liability in exchange
50%
for a single lump sum, thereby ending the law's blanket
25% 200% prohibition on waiver of the injured workers' rights,93 and
made it easier for employers and carriers to accuse injured
workers of workers' compensation fraud and interfere
with their benefits pending the -resolution of such
50% fraud allegations. 94
The Workers' Compensation Reform Act of 200795
was the product both of persistent complaints by the
business lobby in the decade following the 1996 reforms

* --¼
f'I
Schedule Loss of Use of Hand due to
Amputation (New York State Guidelines for Determining
Permanent Impairment and Loss of Wage Earning
Capacity)
control. 88 The only such "reform" that employers
demand, however, is the type that further shifts the
burden of getting injured on the job from employers
and insurance carriers onto injured workers
themselves. 89 Other methods of reducing premiums
such as preventing workplace accidents, reducing
fraud by employers and carriers, and controlling
insurance company profits and legal expenditures are
never considered. 90
This "crisis-reform-crisis" cycle can be readily seen in
the history of legislative and judicial changes to the Work-
ers' Compensation Law between 1996 and the present.
The Omnibus Workers' Compensation Reform Act of
199691 repealed the expanded employer tort liability estab-
lished by the New York Court of Appeals in 1972,92
that high premiums were hurting economic opportuni-
ty in the state and the growing promulgation of nega-
tive stereotypes of injured worker_~ as moochers and
malingerers96 and of complaints by workers of benefit
caps that lagged behind inflation, 97 burdensome delays
in receiving medical treatment after filing claims, cor-
ruption and fraud by employers and carriers, and a lop-
sided penal structure whereby workers who committed
fraud were guilty of felonies but employers and carriers
who did were only guilty of misdemeanors. 98
The central feature of the 2007 reform was a "bargain"
between workers and employers whereby the statutory
weekly indemnity cap would be raised rapidly over the
ensuing years and ultimately be indexed to two-thirds of
the slate's average weekly wage,99 and in exchange,
workers whose injuries occurred on or after March 13,
2007 would give up the right to lifetime weekly indemni-
ty benefits for non-schedulable permanent partial disabil-
ities and accept durational caps on such benefits ranging
from 225 to 525 weeks after the date on which the injured
worker's disability is found to be permanent. 100
The duration of benefits for non-schedulable perma-
nent partial disabilities for workers injured on or after
March 13, 2007 is determined not by medical impairment

-¥i'
CARTOONIST ILLUSTRATOR DESIGNER
Salutes the Coalition of Concerned Legal Professionals

(707) 765-2406
e-mail: petemcd@sbcglobal.net
 a®ti4tAri'oJiil~t4Btiiiif·Jiittiiiih1lklitdiatmtttn~wt®I
alone, as it had previously been, but by a category called
"loss of wage earning capacity," which is a percentage
figure arbitrarily101 decided by the Board after it consid-
ers the claimant's medical impairment, functional loss,
and such non-medical vocational factors as age, educa-
tion, work experience, and English language proficien-
cy.102 The reform included a "safety net" provision where-
by injured workers with non-schedule permanent partial
disabilities classified with a loss of wage earning capaci-
ty that is greater than 80 percent may apply for an exten-
sion of benefits when their statutory cap periods rw1
out. 103 However, given the arbitrary manner by whim the
Board determines the percentage of loss of wage earning
capacity, there is no rational way for injured workers or
their attorneys to predict the likeliliood of the safety net
provision applying in a given case.
The 2007 reform also mandated that:
the commissioner of labor ... shall track all
claimants who have been awarded permanent
partial disability status and report annually on
... the number of said claimants who have,
returned to gainful employment, been recate-
gorized as being totally industrially disabled,
subject to the statutory durational caps on
indemnity benefits, and not returned to work,
and whose indemnity payments have expired
and the additional steps the commissioner con-
templates are necessary to minimize the
number of workers who have neither returned
to work nor been recategorized from perma-
nent partial disability. 104
However, this provision was not complied with between
2008 and 2016.
In 2016, the Commissioner of Labor finally did pub-
lish a safety net report. 105 The report found that as of
Keep up the good
work, CCLP!
from
Michael Chambers, Esq.
San Francisco
2016, 163 workers classified with a permanent partial
disability had exhausted their durational benefits and
another 327 were within one year of doing so. 106 Not one
of these injured workers was classified with a loss of
wage earning capacity above 80 percent such as would
qualify him or her for an extension of benefits nnder the
"safety-net" provision.1°7 Of the 163 workers who had
already exhausted their benefits, 133 dia not receive
wages in New York State in the second quarter of
2016. 108 As for the "additional steps" that the Commis-
sioner of Labor thinks are necessary to reduce the
number of workers who have exhausted their benefits
but have not returned to gainful employment, the report
notes simply that "links to the Department's career
services have been posted on the Board's website, as
well as links to vocational rehabilitation resources and
other career centers." 109
Another major aspect of the 2007 reform was the
introduction of medical impairment guidelines 110 for
certain types of injuries whereby insurance carriers
were for the first time able to deny certain surgeries,
prescription drugs, and other treatments and even
physical therapy sessions above a certain number,
forcing injured workers and their doctors to fill out
reams of new paperwork in order to obtain "variances"
for such treatment and precipitating a universe of new
legal battles for which attorneys representing the
injured workers would never be compensated because
no monetary recovery is generated by winning
such battles.
The previous decade also saw partially disabled
workers facing new case law that added more obstacles
to collecting benefits. In 2012, the Court of Appeals held
that injured workers with partial disabilities must "find
alternative work consistent with their physical limita-
tions, or at least show reasonable efforts at finding such
SETH SCHLUSBERG
299 Broadway, Suite 1508
m
New York, NY 10007-2001
212-267-8600 800-225-2736
fux: 212-267-8687
ss@bridgeservice.com
Local Comt & Agency Services
Nationwide Corporate Services
Real Estate Services
Nationwide Public RecOl'd Services
Fot·eign Document Apostille
BRIDGE SERVICE CORP.
www. bridgeservice, com
 ~@4ttri•lllifNbt1iii&fiitbii,M>Jtl,lR?iMUttilh~'btG@I
work" in order to remain eligible to collect wage replace-
ment indemnity benefits because only by doing so can
they "demonstrate that their
reduced earniug capacity is due
to the disability, not ... factors
unrelated to the disability." 111
Such alternative work or rea-
sonable efforts to find it is
II
known as attachment to the
labor market," and where there
is no dispute among the med-
ical experts in a case that the
injured worker's disability is
partial and not total, the insur-
ance carrier 1nay "raise attach-
ment," at which point the
injured worker "is obligated to
produce continuing documen-
tation of a good faith search for
work within his/her restric-
tions" or else lose his or her workers' indemnity bene-
fits.U2
In Employer: American Axle,113 the Workers' Compen-
sation Board explained the process which the partially
disabled injured worker must undertake in order to pre-
vent the sudden cessation of indemnity benefits:
While an independent job search is encouraged,
absent documentation verifying a timely, dili-
gent, and persistent outreach to potential
employers for work within the medical restric-
tions, there is no credible evidence upon which
to find an attachment to the labor market. At a
minimum, if the independent job search is in
person, documentary evidence should provide
the day, month, and year of the contact; the
name and address of the employer; the name
and telephone number of the person with whom
employment was discussed; the type of job
sought; and the response of the potential
employer. If the contact was written, copies of
the resume submitted if any; the inquiry letter or
e-mail communication; or the application com-
pleted is necessary along with the day, month,
and year submitted, the nature of employment
sought, name and address of the employer and
the response of the potential employer.
Where the injured worker's
evidence of an independent
job search alone is not suffi-
cient to support a finding of
a good faith job search, his
or her active and continued
participation in any one of
the following would be suffi-
cient to show a good faith
job search and/or attach-
ment to the labor market: (1)
one of New York State's
Department of Labor's
reemployment services, (2)
Illustration by Myles Davis the services offered by a
One Stop Career Center,
(3) a retraining program, (4) a rehabilitation pro-
gram by VESI0 114 or other board approved reha-
bilitation program, (5) a job service commonly uti-
lized to secure work within a specific industry, or
(6) enrollment and full time attendance in an
accredited educational institution to pursue
employment within the work restrictions. 115
Given the often arbitrary distinction between total dis-
ability and a high degree of partial disability, and given
the various vocational age, education, and language limi-
tations that lessen many workers' job prospects indepen-
dently of any physical injury they may have, the effort to
attach to the labor market is for many injured workers a
futile and humiliating charade amounting to little more
than yet another mechanism whereby insurance carriers
can save money at workers' expense.
This year, the state legislature struck another work-
ers' compensation reform deal as part of the budget
process. 116 Key pro-worker provisions include the abo-
lition of the permanently partially disabled injured
workers' obligation to demonstrate ongoing attach-
ment to the labor market, inclusion of all permanent

See.More.
Top-Deck
Bus Tours
(212) 812-2700
Experience More.
Enjoy More.
ATTORNEY AT LAW

225 BROADWAY
(
NEW YORK, NY 10007
Ask about the tree boat ride! Tel: (212) 732-0522 Fax: (212) 587-0570
www.citysightsny.com
 ~ffliti:JtMi·Ji;lfNit-#id❖,ihtti/S@iliiirii:ittmttlh,W@
partial disabilities above 75 percent (as opposed to the
former 80 percent threshold) in the "safety-net provi-
sion," the introduction of mandatory full 13-commis-
sioner Board review of appeals decisions by three-com-
missioner panels that reduce an Loss of Wage Earning
Capacity (LWEC) percentage finding high enough to
qualify the injured worker for the "safety-net" provi-
sion lo one below that threshold, and an easing of the
burden of proof for emergency first responders bring-
ing mental stress claims.
Howeve1; the 2017 reform also caps the number of
weeks for which permanently partially disabled workers
with classifiable injuries who were injured after the
reform became law can receive indemnity benefits dur-
ing the period of temporary disability at 130, allowing
insurance carriers to credit every such week over 130
toward the weeks of permanent disability they owe,
reducing the latter number of weeks by the same
amount. Thus, for example, an injured worker who does
not reach maximum medical improvement until ten
years after the date he is injured due to multiple surg-
eries or the addition of new consequential injuries to the
case and is then classified with a 71 percent LWEC would
be entitled to only ten additional weeks of benefits at the
permanent partial disability rate because the carrier
would be able to take credit for 390 past weeks at
DAVID MICHAEL BIGELEISEN
CRIMINAL DEFENSE
COURAGE ~ COMPASSION
Available for Consultation
and Referral
1155 Pine Street
San Francisco, CA 94109
415·957· 1717
David Bigeleisen is
AV Rated by Martindale-Hubbell
www.bigeleisenlaw.com
temporary disability, and a 71 percent LWEC restricts the
injured worker to 400 weeks of future benefits.
The 2017 reform also provides that the Chair "shall
consult with representatives of labor, business, 1nedical
providers, insurance carriers, and self-inSured employ-
ers,, on how to revise the Workers' Compensation
Board's guidelines on how schedule loss of use percent-
ages are determined and requires that revisions be adopt-
ed by the end of this year that are "reflective of advances
in modern medicine that enhance healing and result in
better outcomes." This language is the product of a
decade-long campaign by the business and insurance
lobbies to convince lawmakers that schedule loss of use
payouts are too high in light of the increase to the statu-
tory weekly indemnity caps that the 2007 reform imple-
mented. In all likelihood, the guidelines will be changed
in such a way that saves employers and insurance carri-
ers money at injured workers' expense, even though
logic would dictate that advances in medicine that enable
patients to recover from their injuries more fully would
result in lower schedule loss of use findings in compari-
son to previous eras even under the current guidelines.
Finally, the 2017 reform mandates the adoption by the
end of this year of a "comprehensive drug formulary" in
which certain prescription medications are pre-approved
but others require prior authorization by the carrier,
Kenneth Gilbert, Esq.
Supports CCLP's struggle
for legal recourse
*******
2297 7th Avenue, 1'' FI.
New York, NY 10030
Phone: (212) 408-1698
Fax: (212) 876-5586
Specializing in Criminal Lciw
and Family Lciw
 over the past century that are better understood, and
there is a danger that by the time the public comes to
0% fully grasp the nature and severity of these threats, it will
Full be too late. 2017 will be a critical year, as workers,
e1nployers, insurance companies, and their respective
25°= 65% advocates and representatives will be actively engaged
in reshaping the Workers' Compensation Board's perma-
45°= 55% nent impairment guidelines in pmfound ways. Only the
active and conscious political engagement of workers
60°= 50%
can stand any chance of stopping the ongoing assault by
employers and insurance carriers and reversing the bn1-
tal and reactionary trajectory that workers' compensa-
110° = 20% tion reform has taken in recent decades.

Percent Loss of Use of the Leg: Flexion Defects of the Knee
(New York State Guidelines for Determining Permanent
Impairment and Loss of Wage Earning Capacity).
thereby taking ever more control over a patient's medical
treatment away from the patient and doctor and adding
to the cumbersome litigation over medical treatment that
injured workers and their attorneys must endure.
Although workers' compensation is acutely impor-
tant to the lives and livelihoods of workers throughout
the State of New York, there is a pervasive ignorance and
misunderstanding of the history and purpose of the
Workers' Compensation Law and of the rights and pro-
tections it provides for injured workers. As a result, these
very rights and protections are more threatened political-
ly than other rights and protections workers have won
1. See Gregory P. Guyton, "A Brief History of Workers' Compensa-
tion," 19 Iowa Orthop. J. 106, 106-110 (1999); see also R Tecumseh
Sherman, "The Jurisprudence of the Workmen S Compensation
Laws," 63 U. Penn L. Rev. 823, 825-26 (1915) and John Fabian Witt,
"The Transformation of Work and the Law of Workplace Accidents,"
1842-1910, 107 Yale L.J. 1467, 1468-70, n.14 (1998).
2. See Guyton, supra note 1, at 106-110.
3. Id.
4. See Sherman, supra note 1, at 823-24; Albert E. Wilson, "Work-
men's Compensation and Employer'.<; Liability Acts" 13-14 (1971).
5. See Margaret O'Donnell, "Disability Benefit Law-Development
of Employer's Liability from Common Law, New York Employer~'
Liability Act and New York Workmen S Compensation Act," 24 St.
John's L. Rev. 105, I 05-06 (1949).
6. See, e.g., Butterfield v. Forrester, 11 East 60, 103 Eng. Rep. 926
(K.B. 1809); Smith v. Smith, 2 Pick. 621 (Mass.1924).

ElnickADR
LAW OFFICES OF FERNANDO ROMO & ASSOCIATES, PLC
Alternative Dispute Resolution
Alan Elnick, Principal 1625 W. Olymp!c Blvd., Suite 1035
Fernando Romo
Arbitrator/Mediator Los Angeles, California 90015
Attorney at Law
Cell (925) 786-7909
Phone: (213) 380-8850
Email: elnickadr@gmail.com Fax: (213) 380-8851
www.elnickadr.com Immigration Law www.romolegal.com

MARITIME TRADES DEPARTMENT

SOUTHERN CALIFORNIA PORTS COUNCIL
/r"-£;;/ch Jay C. Carlisle
AFL-CIO I'
Attorney at Law
OFFICERS & EXECUTIVE BOARD

MEMBERS White Plains, NY

SUPPORT CCLP (914) 422-4234
P.O. BOX 6366 SAN PEDRO, CA 90734

·~
7. See, e.g., Cruden v. Fentham, 2 Esp. 685, 170 Eng. Rep. 496 "Nothing contained in this constitution shall be construed to limit
(1799); Russell v. Minneapolis & St. Louis Ry., 32 Minn. 230, 20 the power of the legislature to enact laws for the protection of the
NW 147 (1884). lives, health, or safety of employees,· or for the payment, either by
8. See, e.g., Priestly v. Fowler, 3M &WI, 150 Eng. Rep. 1030 employers, or by employers and employees or otherwise, either
(1837); Farwell 1, Boston & Worchester R.R., 4 Mete. 49 (Mass.1842). directly or through a state or other system of insurance or other-
9. See Witt, supra note 1, at 1470. wise, of compensation for injuries to employees or for death of
employees resulting from such injuries without regard to fault as a
10. Id. at 1471,· see also Daniel T. Rodgers, The Work Ethic in Indus-
cause thereof, except where the injury is occasioned.,by the wil(ful
trial America, 1850-192017 (1978).
intention of the injured employee to bring about the injury or death
11. Witt, supra note I, at 1473-75. of himself or herself or of another, or where the injury results sole-
12. Id. at 1473. ly from the intoxication of the injured employee while on duty,· or
I 3. See Id. at 1478. for the adjustment, determination and settlement, with or without
14. See Id. at 1480. trial by jury, of issues which may arise under such legislation; or
15. See Robert Asher, "Failure and Fulfillment: Agitation.for Employ- to provide that the right of such compensation, and the remedy
therefore shall be exclusive of all other rights and remedies for
er S Liability Legislation and the Origi.ns of Workmen S Compensation
injuries to employees or for death resulting from such injuries; or
in New York State, 1876-1910," 24Lab. Hist. 198,203 (I983).
to provide that the amount of such compensation.for death shall
16. See Witt, supra note 1, at 1482-83.
not exceed a fixed or determinable sum; provided that all moneys
17. See Price v. Fishback & Shawn Everett Kantor, The Adoption of paid by an employer to his or her employees or their legal repre-
Workers' Compensation in the United States, 1900-1930 12-17 (Nat'! sentatives, by reason of the enactment of any of the laws herein
Bureau of Economic Research, Working Paper No. 5840, 1996). authorized, shall be held to be a proper charge in the cost of oper-
18. Witt, supra note 1, at 1499. ating the business of the employer."
19. Jd.; Wilson, supra note 4, at 14-16. Formerly §19. Renumbered by Constitutional Convention o/1938 and
20. See James Parker Hall, The New York Workmen S Compensation approved by vote of the people November 8, 1938; amended by vote of
Act Decision, 19 J. Pol. Econ. 694, 694 (1911). the people Navember 6, 2001.
21. Id. 36. Id. at 279.
22. Id. 37. 2I5NY 514 (1915), rev/;/ on other grounds, 244 U.S.205 (1917).
23. Id. 38. Id. at 523-24.
39, 243 U.S. 188 (1917).
24. Id.
40. Id. at 201.
25. Id. The full text of the statute is reproduced in the !iyllabus sec-
tion of Ives v. South B.R. Co., 201 NY 271 (1911). 41. Id. at 208.
42. See NY Wk Comp. Law§ 3.
26. 201 NY 271 (1911).
43. Id.§§ 2(10), 76-100.
27. Id. at 287.
44. Id.§§ JO, 50.
28. Id. at 289-90.
45. Id.§ 52.
29. Id. at 294.
46. Id. §§ 11, 29.
30. Id.
47. Id,· see also Acevedo v. Consolidated Edison Co. ofNew Tork; Inc.,
31. Id. at 295-96, 298. 189A.D.2d 497 (App. Div., 3d Dept. I993).
32. Id. at 305. 48. In order for an injured worker to be entitled to workers' com-
33. Mary L. D 'Agostino, "New York State .S 2007 Jforkers 'Compensation pensation for a specific injury, that injury must be "established" by
Reform: Success or Failure?," 76Albany L. Rev. 367, 373-80 (20I3). the Workers' Compensation Board. To establish a claim, the injured
worker must prove that he or she sustained an accident arising out
34. Id. at 373-74.
of and in the course of employment and notified the employer of
35. See Wilson, supra note 4, at 27. Section 18 of the New York such accident within thirty days of its occurrence and that the
Constitution provides: resulting disability or impairment is causally related to the claimed

Peter M. Sproul, Esq.

supports CCLP's fight for justice! Mark A. Gloade, Esq.
Mullen & Sproul, 1.1.p.
540 Lennon Lane supports
Walnut Creek, CA 94598 Coalition of Concerned
925.256.3900 Legal Professionals'
Fax: 925.256.3920 Know Your Law sessions.
E-Mail: Peter@mullensproul.com
 . 16 \lerdict · , , . Workers' 'Ctom enclatidm 'An lnsdranee}ndustr WJ1Jtlfa(J
accident. N.Y. Wk. Comp. Law§§ 10, 18; McCormackv. Wood Har-
mon Warranty Corporation, 288 NY. 614 (1942). Employers and
insurance carriers may accept the claim and concede liability or
"controvert" the claim, asserting as defenses that the injured work-
er did not meet his or her burden, that there is no employer-employ-
ee relationship, that the claim was not filed within the two-year
statute of limitations, and so forth. The il1jured worker, howeve1; is
presumed to have met the burden unless the employer presents sub-
stantial evidence to the contrary. See NY. Wk. Comp. Law§ 21.
49. See id. §§ 13_13-o.
50. See id.§ 15.
51. See id.
52. See Employer: Wells Communication Co., 2016WL 6134371, at *3
(NY W<:,r/, Comp. Bd., Oct. 17, 2016).
53. N.Y Wk Comp. Law§§ 15(2, 5).
54. ld. §§ 15(1, 3).
55. Id.§ 14.
56/d. §§ 15(1, 6).
57. Id. §§ 15(5_5-a, 6); see also Employer: United Parcel Service,
Inc., 2015 WL 5898489 (NY. W<:irk. Comp. Bd., Oct. 6, 2015) (illus-
trating the analysis utilized in determining the rate at which an injured
worker will receive weekly indemnity benefits for temporary disability
by reference to degree ofpartial disability and average weekly wage).
58. Id.§§ 15(6)(h-j).
59. ld. §§ 15(2, 5).
60. See id.§§ J5(3)(a-t).
61. See Schmidt v. Falls Dodge, Inc., 19 N.Y3d 178, 182 (2012); Lans-
berry v. Carbide/Graphite Group, Inc., 28A.D.3d 1031, 1032-33 (App.
Div., 3d Dept. 2006).
62. See Employer: KingsboroATC, 2007 WL 4lll749, at *I (NY.
Work. Comp. Bd., Nov. 13, 2007) ("The fact that the claimant has
returned to work does not preclude the possibility that the claimant
has suffered a permanent impairment that is amenable to a schedule
loss of use award.").
63. N.Y. Wk. Comp. Law§ 15(3).
64. Id.§§ 15(3)(a).
65. See Employer: AM & G Waterproofing, Inc., 2009 WL JI 15108,
ERIC A. SEIFF
ATTORNEY
f.
at *2 (NY Work. Comp. Bd.,Apr. 20, 2009) ("When paying an
award for a schedule loss of use, the carrier is permitted to take
credit.for prior payments made.''.).
66. See N.Y. Wk. Comp. Law§ 15(3)(w).
67. See id.
68. See Boyle v. Gatti, 40 A.D.2d 1063, 1063 (App. Div., 3d Dept.
1972) (''The fact claimant retires or is laid ojffrom his job does
not preclude an award 'where there is a.subsequent loss of wage-
earning capacity which is due to claimant's disability rather than
to old age, general economic conditions or other factors
unconnected with his disability.").
69. See Till v. APEX Rehabilitation, 144A.D.3d 1231, 1233 (App. Div.,
3d.Dept. 2016) ('1n cases ofpermanent partial disability that are not
amenable to schedule awards, "wage-earning capacity" is used to
determine a claimant's weekly rate ofcompensation,").
70. All permanently partially disabled wm1cers with non-schedulahle
injuries whose accidents occurred prior to March 13, 2007 remain enti-
tled to lifetime weekly benefltv at the weekly rate determined by their
permanent degree ofpartial disability. See Employer: James P Keegan,
Inc., 2016 WL 927613, at *3 (NY Work Comp. Bd., Mar. 2, 2016).
71. Id.
72. N.Y Wk. Comp. Law§ 15(3)(w}.
73. See Employer: K-Mort Corporotion, 2013 WL 6703960, at *2
(N.Y Work. Comp. Bd., Dec. 17, 2013).
74. See Lois Law Firm, L.L.C., New York, New Budget Contains Work-
ers' Compensation Reforms in New York, http://lois-llc.com/new-
york/new-budget-contains-workers-compensation-reforms-in-new-yorld.
75. See N.Y Wk. Comp. law§§ 140, 142.
76. See Greenberg v. New York City TransitAuth., 7 N.Y3d 139, 146,
n.l (2006).
77. N.Y Wk. Comp. Law§§ 140-141.
78. Id. §§ 142, 146.
79. Id. § 23; 22 NYCRR § 800. 18.
80. N.Y Wk. Comp. Law§ 23; 22 NYCRR § 500.1, et seq.; N.Y
C.P.L.R. §§ 5601, 5602.
81. N.Y Wk. Comp. Law§ 2(15).
82. See Johannesen v. New York City Dept. of Housing Preservation
and Development, 84 N.Y2d 129, 134-37 (1994}; Middleton v. Cox-
sackie Correctional Facility, 38 N.Y2d 130, 133-34 (1975).
83. See Robert J. Chojnacki," Occupational Disease under the New
York Workmen S Compensation Law", 42 St. John~ L. Rev. 473,
489-93 (1968).
84. See N. Y Wk. Comp. Low§ 120; Axel v. Duffy-Mott Co., Inc. 47
N.Y2d 1, 5-6, n.2 (1979).

STORCH AM!NI & MUNVERS

2 GRAND CENTRAL TOWER
140 EAST 45TH STREET, 25TH FLOOR
NEW YORK, NY 10017 8.H. Chaifetz
(212) 490·4100 OFFICE Attorney at Law
(212) 497-8236 DIRECT LINE
(212)490-4208 FAX
WWW. SAMLEGAL.COM SALUTES THE EFFORTS OF
NATIONAL COALITION OF CONCERNED
CONGRATULATIONS, CCLP LEGAL PROFESSIONALS
FOR YOUR DEDICATION
 W@lt
85. See Wolfe v. Sibley, Lindsay & Curr Co., 36 N.Y.2d 505, 510 (1975) 102. See State of New York, Workers' Compensation Board, New
("We hold today that psychological or nervous injury precipitated by York State Guidelines for Determining Permanent Impairment and
psychic trauma is compensable to the same extent as physical injury.") Loss of Wage Earning Capacity 44-47 (2012).
86. Dolev. Dow Chem. Co., 30N.Y.2d 103. See N. l'. Wk. Comp. Law§ 35(3).
143 (1972), cited in New York Hosp. 104. See N.Y. Wk Comp. Law§ 35(4).
Medical Ct,: of Queens v. Micro tech Con-
105. See State of New York, Department
tracting Corp., 22 N.Y.3d 501, 510 (2014)
of Labor, Roberta Reardon, 2016 Annu-
(quoting Governor1s Approval Mem., Bill al Safety Net Report of the Commis-
Jacket, L. 1996, ch. 635 at 54-55, 1996 sioner (20 I 6). •
N. Y Legis. Ann. at 459-460).
106. Id. at 2. The number ofsuch i11jured
87, See Greg Tarpinian, Dom Tuminaro, workers will surely balloon in the com-
& Joel Shufro, "The Politics of Work-
ing years with the continuing accumula-
ers' Compensation in New York State:
tion ofworkers' compensation claims for
Developing a Pro-Labor Strategy to
accidents occurring on or after March
Defeat Business-Sponsored 'Reform'
13, 2007. A, of the 2016 report, up to 97
and Win Increased Protection for Work-
percent ofsuch injured workers still had
ers," 7 New Solutions 35, 37 (1998).
more than 50 weeks ofstatutory benefits
88. Id. available to them.
89. Id.
/07. Id.
90. Id. Illustration by Myles Davis J 08. Jd. at 3.
91. See L. 1996, ch. 635.
109. Id.
92. See N. Y. Wk. Comp. Law§ 11 ("an employer shall not be liable
110. See State of New York, Workers' Compensation Board, New York
for contribution or indemnity to any third person based upon liability
non-acute pain medical treatment Guidelines (2014); State ~f New
J0r injuries sustained by an employee acting within the scope of his
York, Workers' Compensation Board, New York mid and low back
or her employment for such employer unless such third person proves
through competent medical evidence that such employee has sus- injury medical treatment guidelines (2014); State ofNew York; "Work-
tained a 'grave injury."'); Majewski v. Broadalbin-Perth Cent. School ers' Compensation Board, New York neck medical treatment guidelines
Dist., 91 N.Y.2d 577 (1998). (2014); State of New York, "Workers' Compensation Board, New York
93. See N.Y. Wlc Comp. Law§ 32. knee medical treatment guidelines (2014); State ofNew York, "Workers'
94. See id. § 114-a. Compensation Board, New York shoulder medical treatment guidelines
(2014),· State of New York, Workers' Compensation Board, New York
95. See L. 2007, ch. 6.
carpal tunnel syndrome medical treatment guidelines (2014).
96. See Julia Ostrov, "An Examination of the New York State Work-
ers' Compensation Reform Act of 2007," 42 J. Sociology & Soc. Wel- 111. Zamora v. New York Neurologic Associates, 19 N.Y.3d 186, 191 '

fare 3, 8 (2015).
97. The statutory maximum weekly indemnity benefit rate for accidents
occurring between July], 1992 and July], 2007 was $400.00. See
N.Y. Wk. Comp. Law§ 15(6); D'Agostino, supra note 35, at 383-84.
98. See Ostrov, supra note 98, at 8.
99. See NY. Wk. Comp. Law§ 15(6).
JOO. See id.§ 15(3)(w).
101. See Employer: Gregory Paul Collis, 2017 WL 585454, at *2 (N.Y.
rfvrk. Comp. Bd., Feb. 6, 2017) ("There is no simple formula to deter-
mine loss of wage earning capacity, and the finding made for one
claimant is not dispositive of a loss of wage earning capacity finding
made for a different claimant in another case.'')
i
(2012) (citing Burns v. Varriale, 9 N.Y.3d 207,216 (2007) and
Jordan v. Decorative Co., 230 NY. 522, 526-27 (1921)).
112. See Employer: NYC Transit Authority, 2016 WL 7010133, at *I
(N.Y. Work. Comp. Bd. Nov. 21, 2016).
113. 2010 WL 438153 (N. Y. Work. Comp. Bd., Feb. 4, 2010).
114. Vocational and Educational Services for Adults with Disabilities.
115. Supra, note 113 at *7.
116. For a more comprehensive overview of the changes to the New
York worker S compensation system contained in the 2017 reform, see
rfvrkers'Compensation Subject Number 046-936 (Apr. 25, 2017),
available at http://www.wcb.ny.gov/ content/main/ SubjectNos/
sn046_936jsp. \;''

Thank You
Coalition of Concerned Legal Professionals
$',,.,,,.,.
;:;,. /f'd1H'd'f PMfo.,'1-,af t, dlV' wr,~ c,....
John J. Doherty
Keep up the good work
Business Manager/Financial Secretary
Members, Officers and Staff
CCLP!
Intemational Brotherhood of Electrical Workers
Local Union 6
San Francisco, California
Sheldon Siegel