201-880-7213

WINNING RESULTS: LOIS Attorney Olivia Barna Prevails on Labor Market Attachment Defense in New York

The claimant was injured on July 14, 2019, when she slipped on wet floor while cleaning. This claim is established to the left knee, back, left hip, and left ankle/foot. The claimant was found to have a temporary partial degree of disability as a September 2021 hearing; therefore, the claimant was directed to produce evidenced of labor market attachment. We filed an RFA-2 when the claimant failed to timely produce evidence of attachment. Moments prior to the hearing on March 7, 2022, the claimant filed evidence of labor market attachment. The Judge found the claimant’s evidence of labor market attachment evidence was not sufficient and suspended benefits.

At a hearing on May 18, 2022, the claimant gave testimony on subsequently produced evidence of labor market attachment. LOIS Attorney, Olivia Barna, argued that that the claimant did not meet her burden of labor market attachment under the seminal case American Axle because the claimant applied for jobs as a home health aide (which was her job at the time of her accident); therefore, the claimant was either not applying to jobs within her restrictions or not as disabled as she claimed. Additionally, the claimant testified that she knew she could not perform the jobs she applied for. Lastly, the claimant failed to follow up with any of the jobs she applied to. The Judge found out that the claimant had significant physical restrictions within the terms of her established workers’ compensation injury, she is non-English speaking, and had a limited education (which wasn’t even address at the hearing). When evaluating these factors, the Judge unfortunately found that the claimant made good faith efforts to search for work within her restrictions and demonstrated labor market attachment. The Judge also reinstated awards on the date of suspension, March 9, 2022.

We appealed this decision.

The Board Panel found that the claimant produced only C-258.1s,which was missing a majority of the information requested on the forms, and are unsupported by confirmation emails or copies of the claimant’s resume. While the claimant produced jobs consistently from March 17, 2022 to March 29, 2022, which may be considered persistent under the case, American Axle, the lack of documentary evidence to support her C-258.1 prevented the Board Panel from finding attachment.

Therefore, the Board Panel rescinded the claimant’s benefits from the period of March 8, 2022 – May 19, 2022, as she was found not attached to the labor market attachment at that time. Finally, the claimant’s attorney’s fee was rescinded.

Download the New York Workers’ Compensation Law Handbook

Download Our New York Workers’ Compensation Law Handbook

The 2023 edition of Gregory Lois’ practical, up-to-date, and easy-to-understand guide to workers’ compensation claims in New York.

This book is designed for employers, attorneys, claim adjusters, physicians, self-insured employers and vocational rehabilitation workers.

Download Now

Learn More About New York Workers’ Compensation Defense at LOIS

We represent insurance carriers, self-insured employers, third party claim administrators, and employers before the New York State Workers' Compensation Board. We handle cases from cradle-to-grave. We want to be by your side, moving cases aggressively to closure from the start of litigation all the way through to settlement.

We only assign one attorney and one paralegal to each case. This means that your team members always have one contact to go to for any questions. We do not have 'hearing attorney' or a 'negotiation attorney' or 'appeal department' or anything else! All of our attorneys handle all of those roles – meaning cases are not 'passed around' as they move through the litigation process. Your risk professional or adjuster always knows who is assigned – because the attorney does not change.

Learn More

Get articles delivered to your inbox, once a month.

Subscribe Today!