LOIS Obtains No-Attachment Finding Shortly After Surgery

LOIS Associate Bradley Haymes secured a no-attachment finding in a New York Workers’ Compensation claim. The Claimant was directed to produce evidence of labor market attachment at a hearing, then had back surgery two weeks later. Shortly before the trial and after the surgery, the Claimant submitted her labor market attachment proofs. On direct examination, the Claimant’s attorney asked: “If offered a position, would you attempt to take it?” The Claimant said, “No.” The Law Judge then asked the Claimant as to why she would apply to positions she knew she could not work, and the Claimant said it was just to fulfill the Judge’s order. The Law Judge further asked if the Claimant would be able to get to the various cities where she applied to for work, and the Claimant again replied she applied to the jobs but could not work and would not have been able to get to them. Haymes requested for a per se finding of no-attachment, as the Claimant admitted that she would not take any of the jobs she applied to, could not get to them, and only applied per the Judge’s order, proving her work search record was pretextual. The Law Judge agreed there was no attachment and held that subsequent surgery did not relieve the Claimant of the need to reattach once directed.