LOIS Proves Unrelated Wage Loss, Relies on Union Restrictions

LOIS Associate Chris Xyloportas received a finding of no entitlement to reduced earnings in a New York Workers’ Compensation claim. The Claimant’s counsel made an application for reduced earning awards, as the Claimant was earning significantly less at his new job as an independent contractor when compared to his prior jobs as a journeyman. Xyloportas elicited on direct examination that, while working for the at injury employer, the Claimant was a union member and was making wages set by that union. He further elicited that the Claimant was laid off from that job and took another job as a service manager, which was another union job in which the Claimant earned union wages. Xyloportas was able to get the Claimant to concede that the Claimant left that job to accept a job as an independent contractor, which was not a union job. The Claimant then also conceded that he has discretion to accept job with a flexible schedule and no set hours and that he will often screen jobs before accepting them. On summations, Xyloportas successfully argued that the Claimant’s reduction in earnings was not due to the Claimant’s injury, but rather due to the Claimant’s lack of a set schedule and the fact that the Claimant was no longer working in a union job making union wages. He successfully argued that there is no entitlement to reduced earnings as the reduction in earnings is based on the Claimant’s decisions regarding work rather than the Claimant’s back injury. The Law Judge agreed with Xyloportas’s position, finding that there was no entitlement to reduced earnings from the date of disablement going forward.