A decision issued this week, on 5/1/12, “Zamora v Neurologic Assn.”, has removed a presumption that people no longer working after an accident were presumptively disabled by the accident. This gave the employer the burden of convincing the Board that entirely different factors were at work.
To put it plainly, the employers had so little chance of success that carriers, lawyers, judges and commissioners paid little attention to agruments that a worker no longer was attached to work and had voluntarily retired. By the late 1980s, the situation had come to the point where “retirement injuries”, i.e., small incidents, were filed as comp claims and used as the basis, years later, for reopening the claim and receiving substantial tax-free supplements to retirement and Social Security payments.[WCx]
The decision, in which benefits were halted, will not be the last word quite yet. It was a narrow split decision and both labor and industry will presumably lobby for slight, but significant, changes in the law.
However, an employer with a well structured program for assistance in Return To Work, not just for workers comp but for disability in general, will benefit the most. Many of the recent decisions involve workers searching for jobs without any assistance from the employer. But an offer of a job, or assistance in finding one, can no longer be ignored by a worker without risk of consequences.[WCx]
Although the role of the employer is not central in the “Zamora” decision, that does not mean that it is not necessary for higher probability of success. Return to work begins, shortly after disability starts, with communication from the employer. The “Zamora” decision involved “presumptions”, but active participation by the employer quickly turns the discussion to facts rather than speculation.
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Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. email@example.com
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