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Zamora Redux

 State: NY


Zamora Bill Headed to Senate Floor


Legislation filed in response to a controversial 2012 New York State Court of Appeals ruling involving voluntary withdrawal from the job market by injured workers cleared the New York Senate Labor Committee Monday and awaits a vote by the full Senate.


The Labor Committee approved Senate 5294 by voice vote. The bill was filed May 16 by Senate Labor Committee Chairwoman Diane Savino, D-Staten Island.


The bill is being sought by claimants' attorneys in response to the Court of Appeals ruling in Rocio Zamora v. New York Neurologic Associates and the State Workers' Compensation Board (SWCB).


The high court ruled on May 1, 2012, that Zamora, a phlebotomist who suffered injuries to her spine and shoulder in 2003, was not entitled to a presumption that her post-accident loss of wages was caused by her injury because she was not actively looking for work.


New York Workers' Compensation Alliance Chairman Robert Grey argued in the case that Zamora had not detached herself from the New York labor market simply because she could not find suitable employment following her injuries.


S 5294 would require SWCB to determine wage-earning capacity for injuries in which there are not actual earnings based on the nature of the injury, the percentage of a worker's impairment and "other relevant factors."


Wage-earning capacity would be capped at 75% of an injured worker's former full-time earnings.


The bill also would define voluntary withdrawal from the labor market as separation from

employment for reasons unrelated to a compensable injury, including termination for cause, layoff, voluntary resignation, retirement due solely to age or years of service, or unjustified refusal of suitable work offered by an employer.


SWCB would be allowed to provide a subsequent award of partial disability benefits if the claimant reattaches to the labor market by returning to work or participating in:


• Reemployment services offered by the New York State Labor Department.

• Services offered by a one-stop career center, a job retraining program or an SWCB-approved retraining program.

• Enrollment or full-time attendance in an accredited educational institution for the purpose of pursing employment within medical restrictions.


S 5294 is here.


Source: WorkCompCentral

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