LOIS Obtains Rescission of Awards from Neck Surgery Claimant

LOIS Senior Associate Stephen T. McLinden secured a significant rescission of awards in a New York Workers’ Compensation case. Following litigation on the issue of degree of disability, the Claimant was found to have a 50% temporary partial degree of disability, and McLinden raised a labor market attachment defense. The Claimant did not submit any job search proofs. In February 2024, awards were suspended on the basis of the Claimant failing to appear at the hearing. After that hearing, the Claimant underwent neck surgery in March 2024. At the following hearing, the Claimant’s attorney had several reasons why the Claimant’s lack of work search should be excused, requesting for awards. McLinden pointed out the ways in which this fact pattern follows Matter of Bacci, a landmark Workers’ Compensation case by which a Claimant who is found unattached to the labor market before even an authorized surgery is not necessarily entitled to awards at a temporary total rate after the surgery until attachment is demonstrated. McLinden further highlighted that the Claimant’s eventual surgery could not explain why she failed to comply with the direction for several months, that she should not be rewarded for skipping the prior hearing, and that it is well-known that Claimants ignore directions of the Board at their own peril. The Law Judge ultimately modified the awards, finding that there was no compensable lost time since the October 2023 hearing, suspending awards. This generated a sizable overpayment in the Carrier’s favor.