The NYS Workers’ Compensation Board’s requirements to prove
“attachment to the labor market” to justify continuing payments.
The Workers’ Compensation Law is becoming a more complex system for the injured worker to navigate. As this law continues to evolve it is becoming more difficult for a claimant follow up on their claim without the benefit of an attorney experienced in the field of Workers Compensation Law. The most recent change in the law effecting “partially disabled” workers demonstrates that well.
The Workers Compensation Board has issued a number of decisions that allow the insurance company to suspend payments to a claimant because that claimant has failed to demonstrate that they remain “attached to the labor market.” A recent decision of the “Full Board” in the American Axle case (WCB#8030 3659) sets forth the criteria to be considered to demonstrate that a partially disabled claimant is entitled to continuing weekly Workers’ Compensation benefits. If the claimant is not aware of this requirement, the payments could be cut off because they can’t prove their attachment to the labor market.
The American Axle case involved a 32 year old factory worker who had two accidents, one in which he injured his back and one in which he injured his neck. He returned to work for the same employer on light duty after both accidents. When the employer closed its plant, the claimant’s doctor found that the claimant was permanently partially disabled from doing his original job. The carrier’s consulting doctor agreed. However the carrier argued that the claimant was not entitled to benefits because he had voluntarily withdrawn form the labor market, meaning he is not looking for work that he can do within his restrictions, and therefore, he is really not disabled. The Board’s decision said:
“It is now well settled that ‘[w]here a claimant has a permanent partial disability but there has been no finding of involuntary retirement, the claimant has an obligation to demonstrate ¬attachment to the labor market with evidence of a search for employment within medical restrictions’(citations omitted). Likewise, a claimant who is temporarily partially disabled must also demonstrate an attachment to the labor market to be entitled to continuing compensation benefits. (citations omitted) A partially disabled person need only seek employment within his or her medical restrictions for which he or she is qualified.”
This is an important statement because it shows that this new rule applies to both temporary and permanently disabled injured workers.
The Board’s decision also said “documentary evidence of a claimant’s active participation in one of the following programs is “determininative of an attachment to the labor market.” These programs include participation in:
(1) One of New York State Department of Labor’s reemployment services,
(2) The services offered by a “One Stop Career Center”,
(3) A retraining program,
(4) A rehabilitation program by VESID (Vocational and Educational Services for Individuals with Disabilities) or other WCB approved rehabilitation program,
(5) A job service commonly used to secured work within an industry, or
(6) Enrollment and full time attendance in an accredited educational institution to pursue employment within work restrictions.
In addition the Board said that just looking for a job yourself is not enough. The decision said, “while an independent job search is encouraged, absent documentation verifying a timely, diligent, and persistent outreach to potential employers for work within the medical restrictions, there is no credible evidence upon which to find an attachment to the labor market.” The Board set forth the criteria that will be applied to determine if an independent job search by the claimant is sufficient to satisfy the attachment to labor market requirement. They are as follows:
- If the inquiry is in person, the documentary evidence should provide
o The day, month and year of the contact,
o The name and address of the potential employer,
o The name and phone number of the person with whom employment was discussed,
o The type of job sought, and
o The response from the potential employer.
- If the contact was written, the documentary evidence provided should include:
o Copies of the resume submitted, if any;
o The inquiry letter or e-mail communication, or the application completed
o The day, month and year it was submitted;
o The nature of the employment sought;
o The name and address of the potential employer; and
o The response of the potential employer.
The Board is going out of its way to prevent Workers Compensation benefits from being an alternative pension for disabled workers. They are motivated to see that the benefits are reduced and suspended at some point to prevent the insurance company and the employer from making permanent weekly benefits. It is important that claimants are aware of these requirements and are prepared to produce the evidence required to prove their attachment to the labor market when the carrier raises the issue. Do not be mistaken, the carrier will raise the issue.
This process begins when your doctor notifies you that he considers you “partially disabled”. At some point I time all claimant’s become partially disabled since the criteria for a total disability are very difficult to maintain. When the doctor speaks to you about your partial disability or finding lighter duty work, you have an obligation to begin looking for that work. It is important to contact our office at that time to assist you in developing a strategy to demonstrate your attachment to the labor market.
This is a significant change in the procedure of a claim, and it is important that claimant’s remain diligent in producing evidence to support their position. We can help you do that. Please contact Helbock Nappa & Gallucci, LLP to discuss your rights further.
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