Right Now There is an Exciting Opportunity For Action!
Effective today, June 24, 2021, New York will end the state disaster emergency declared on March 7, 2020 to fight COVID-19. This means that we are again raising Labor Market Attachment as a defense in all cases where it applies. This will create leverage towards Section 32 settlements by developing grounds to suspend payment of temporary disability for less-than-totally disabled claimants.
What is the Labor Market Attachment Defense?
When a claimant has less than a total degree of temporary disability they have an obligation to remain attached to the labor market. If the claimant’s treating physician(s) opine the claimant has a partial temporary disability (anything less than 100%) or there has been a finding by the Board that the claimant has a partial degree of disability (temporary) the claimant has a legal duty to continue to search for work within his/her restrictions.
This is a powerful defense because once it is raised, the burden of proof shifts to the claimant to show that they are actively looking for work within their restrictions. They must produce the following:
- Proof that they they looked for work within restrictions at “many places” AND
- Evidence of “active participation” in at least one NYSDOL re-employment service. “Active Participation” is defined in the case law as
- Calling for an appointment at OneStop or VESID;
- Attending an orientation session
- Meeting with a One-Stop counselor to develop a resume;
- Registering a resume in the One-Stop system;
- Following up to determine whether there were any job matches; and
- Following up on all job referrals and matches.
The Board created a Form (Form C-258.1) for the claimant to use when documenting their independent work searches.
Why Is This Important Now?
This is important now because since March 7, 2020, the Workers’ Compensation Board in New York has not been sustaining defenses based on Labor Market Attachment. Instead, the Board has found in favor of the claimant, stating that because of restrictions put in place to deal with the pandemic, claimant had no obligation to look for work when they were less-than-totally disabled. The Board adopted this as its official position.
Now that the restrictions of Executive order 202 have been lifted, Labor Market Attachment as a defense is a viable defense again.
What Should We Be Doing Now?
At LOIS we are reviewing every New York case we defend to determine if Labor Market Attachment applies. Attorneys are raising Labor Market Attachment at every hearing where the claimant has a less-than-total disability and the employer can not or will not offer a light duty position.
What Cases Qualify for Immediate Action?
This defense tactic applies in cases with any of the following:
- adjudicated fixed temporary partial disability, or
- concessions from treating doctors regarding ability to do light duty work, or
- implied statements in medical records regarding ability to work like “100% from job.”
In these circumstances, immediately litigate labor market attachment.
How Should We Go About This?
We are aggressively raising Labor Market Attachment by way of RFA-2 (“request for Further Action”) demanding that the Board command the claimant to immediately resume a work search and file a C-258.1 (“Claimant Record of Independent Job Search”).
Why Should We Pursue This Aggressively?
First and foremost, it is the Firm’s mission to always pursue all defenses zealously.
It is important that we take the lead and push for this legal defense to be given credit again.
Questions on LMA?
Contact Greg Lois now to see if Labor Market Attachment will have an impact on your case population. We are here to answer your questions on this defense tactic (201-880-7213).
