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Lockdown Let Up: Practical Tips on Attacking Attachment

It’s time to raise attachment!

  • Long Island and Mid-Hudson Valley Regions have met all seven metrics required to begin phase one of the state’s regional phased reopening plan; Capital Region, Western New York, Central New York, Finger Lakes, Mohawk Valley, North Country and Southern Tier can enter phase two. Here is what PHASE TWO entails.
  • New York City will enter phase one of reopening TODAY (June 8). Here is what PHASE ONE allows.
  • The Mid-Hudson Valley is on track to enter phase two of reopening TOMORROW (June 9) and Long Island is on track to enter phase two on WEDNESDAY (June 10).

For those claimants not working but with a light duty or restricted work ability, they MUST be looking for work within their restrictions. As all of New York is expected to have at least some restrictions lifting by Wednesday, we should again be raising attachment because claimants have a duty to seek work within their restrictions. Case law is clear that it does not have to be the same type of work or industry that they were employed in at the time of the compensable loss.

What is Labor Market Attachment

In New York, a temporarily partially disabled claimant must demonstrate an attachment to the labor market to be entitled to continuing compensation benefits. This means actively looking for a job within their medical restrictions if the employer can not accommodate them at the pre-injury employment.  Raising the issue of labor market attachment is beneficial in reducing the overall exposure of the claim as it may result in a suspension of benefits due to the claimant’s failure to attach themselves to the labor market.

Required proofs for claimants to show “attachment.”

In order to demonstrate attachment to the labor market, the partially-disabled claimant in a workers’ compensation case must show:

  1. the many places they have looked for work within their restrictions AND
  2. provide documented evidence of active participation in at least one NYSDOL re-employment service. “Active Participation” is defined in the case law as
    • calling for an appointment at OneStop or VESID;
    • attending an orientation session;
    • meeting with a One-Stop counselor to develop a resume;
    • registering a resume in the One-Stop system;
    • following up to determine whether there were any job matches; and
    • following up on all job referrals and matches.

The Workers’ Compensation Board has issued a form for claimants to use to keep track of “the many places they have looked for work within their restrictions.”

Are online job searches enough to show attachment to the workforce? Recent New York case law instructs that a claimant may show attachment through online searches only, but also shows how employers can poke holes in weak or fake searches.

Why raise “attachment.”

The reality is that many partially temporarily disabled claimants do not conduct any sort of meaningful work search. For many claimants, it is not until the employer/carrier raises attachment as a defense to further benefits that a work search is undertaken.

In other words – this is a defense that is waived unless affirmatively raised.

In the long-run, it is relatively easy for a claimant to assemble proofs and get an ongoing disability benefit reinstated – they merely have to follow the steps (above) to demonstrate attachment. Upon doing the required steps, they can file an RFA-1LC and ask a Workers’ Compensation Judge to reinstate benefits. Generally speaking, most Judges of Compensation will accept even a modest work search as meeting the requirements for showing attachment and will reinstate benefits.

Even though a successful “attachment” argument may result in only a short-lived termination of benefits (for the motivated claimant), it is a useful tool in gaining traction in a slowly-progressing case. At the time benefits are discontinued for lack of attachment, an offer to resolve the claim amicably can be made.

Practical tips:

Our “practical tips” focus on turning this process around – on using the information provided by the claimant to generate proofs that the work search was inadequate (or, in some cases, that the claimant committed fraud by identifying employers where work was not actually sought).

  1. Job search questionnaires should be regularly sent to partially temporarily or partially permanently disabled workers. I recommend every thirty days, send Form 258.
  2. If the claimant fails to return a completed form, issue an RFA-2 to have the matter set down for a hearing on attachment. If the Form is vague or incomplete, issue an RFA-2 to have the matter set down for a hearing on attachment.
  3. Using the list of potential employers supplied by the claimant, ask your defense counsel subpoena the records of every single employer where the claimant alleges they applied for work. This sets up two defenses – an “attachment” defense and a potential fraud defense (Section 114a). You can also have a vocational counselor or the claims professional (adjuster) make contact with every employer identified (but remember, documentation of the response is key).
    • When the claimant has identified an employer – stating they applied for a job electronically at Walmart for example – and the employer responds to the subpoena duces tecum by stating they never received an employment application from the claimant, the employer/carrier is well armed to argue that the claimant has not pursued employment “at many places” wihtin her restrictions, and that benefits should be terminated.
    • Completing a work search questionnaire by reporting that work was sought and applications submitted to entities that deny contact with the claimant may constitute fraud under WCL Section 114a. Specifically, an argument should be made that the claimant “knowingly made a false statement or representation as to a material fact” in order to obtain a cash benefit.
  4. In some high-exposure, disputed cases, you may want to consider using a labor market survey to demonstrate suitable alternative employment.
  5. Where the entire job search was done “online” the claimant must still show proofs – usually email messages from the employer – stating that an application was received. As per the new decision, defense counsel should be prepared to cross-examine the claimant on the exact job offered and whether the job was within the medical restrictions of the claimant.
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