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WINNING RESULTS: LOIS Wins on Labor Market Attachment in New York

This is a claim where labor market attachment was originally held in abeyance due to COVID restrictions, however, LOIS attorney, Adam Lowenstein, was persistent with raising and pursuing the issue once the Board lifted the COVID restrictions and was successful twice in achieving a finding of no attachment to the labor market. The first time was because the claimant failed to file work search documentation and the second was based on a successful cross-examination and picking apart the sufficiency of the work search.

Claim is established for the back, left hip, and right hip. At the hearing held on June 8, 2021, the Law Judge found that the claimant had an ongoing moderate degree of disability. We raised the issue of labor market attachment. At a hearing on July 22, 2021, the Law Judge noted that the issue of labor market attachment was stayed until August 16, 2021 due to COVID. Therefore, the RFA-2 was denied.

At the hearing on January 25, 2022, we argued that if the claimant was seeking reinstatement of awards, she would also need to produce labor market attachment evidence based on the partial disability found at the hearing on June 8, 2021. The Judge then ordered the claimant to produce labor market attachment evidence within 60 days.

At the hearing on April 29, 2022, the Law Judge then took testimony of the claimant with respect to the issue of labor market attachment. The Law Judge found no attachment to the labor market as there was no sufficient supporting documentation and therefore, awards were suspended.

Claimant’s counsel then filed an RFA-1 and multiple work search documents to request a hearing and a finding that the claimant is attached to the labor market.

At the hearing on December 1, 2022, the Law Judge took the testimony of the claimant with respect to labor market attachment and her work search. On direct examination, the claimant testified that she has been looking for work since the Law Judge directed it. She is looking for cleaning services jobs as that is what she knows how to do. She stated that she can only stand for 20 minutes and there are a lot of things that cause pain. She has not had any interviews. She confirmed that she submitted a resume and that if a job was offered, then she would take it.

On cross-examination, we were successful in getting the claimant to concede that she could not return to her former job due to her physical restrictions, however, she confirmed that she was applying for the same type of work as her former job. She was then questioned based on her resume which revealed an accounting degree in 1984 and conceded that she worked as a cashier between 1984 and 1988, but conveniently failed to list that on her resume. She conceded that she applied only for jobs that she knows how to do, but is not physically able to do which allowed us to point out during summations that it was not a good faith work search as she applied for jobs she knew she would not be hired for. The claimant confirmed that she told the employers about her restrictions therefore she could not possibly be hired for those positions applied for. She testified that she does not speak English, but when pushed that her resume said she does speak English, she attempted to clarify that she speaks enough to work at prior job and follow instructions. Therefore, she was not forthcoming about her true English proficiency.

During summations we argued that the claimant’s resume was minimalist and incomplete as she left off her other experience to make it seem as though she had less work skills. We also argued that in no way was her job search in good faith as alleged by her attorney as she only applied for positions that she knew she would not get an offer of employment for or be able to do based on her alleged restrictions. This was in no way a timely, diligent and persistent work search conducted in good faith.

Ultimately the Law Judge agreed with the carrier’s position based on our thorough cross-examination and found no attachment to the labor market as the work search was not diligent or in good faith. The period for which the claimant was seeking awards was marked no compensable lost time.

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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.

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