Practical Tips on Attacking Attachment

Are online job searches enough to show attachment to the workforce? Recent New York case law instructs that a claimant may show attachment through online searches only, but also shows how employers can poke holes in weak or fake searches.

Required proofs for claimants to show “attachment.”

In order to demonstrate attachment to the labor market, the partially-disabled claimant in a workers’ compensation case must show:

  1. the many places they have looked for work within their restrictions AND
  2. provide documented 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 Workers’ Compensation Board has issued a form for claimants to use to keep track of “the many places they have looked for work within their restrictions.”

Why raise “attachment.”

The reality is that many partially temporarily disabled claimants do not conduct any sort of meaningful work search. For many claimants, it is not until the employer/carrier raises attachment as a defense to further benefits that a work search is undertaken.

IMGP0262

In other words – this is a defense that is waived unless affirmatively raised.

In the long-run, it is relatively easy for a claimant to assemble proofs and get an ongoing disability benefit reinstated – they merely have to follow the steps (above) to demonstrate attachment. Upon doing the required steps, they can file an RFA-1LC and ask a Workers’ Compensation Judge to reinstate benefits. Generally speaking, most Judges of Compensation will accept even a modest work search as meeting the requirements for showing attachment and will reinstate benefits.

Even though a sucessful “attachment” argument may result in only a short-lived termination of benefits (for the motivated claimant), it is a useful tool in gaining traction in a slowly-progressing case. At the time benefits are discontinued for lack of attachment, an offer to resolve the claim amicably can be made.

The need for a work search

A claimant who is receiving an award for partial temporary disability has an ongoing obligation to show “attachment to the workforce” – that she is actively seeking a job within her restrictions. Once the employer raises this issue, the burden is on the claimant to show a evidence of a job search.

The problem with this defense is that when you get a hearing on attachment, the claimant will show up in Court with a (typically) handwritten list of places where she sought work. The list will be purposefully vague. A common practice is for the claimant to write down a list of stores near their home that they allegedly went to to look for work (“Home Depot,” “Walmart”, Walgreens” etc). The Board has created a voluntary form (Form C-258) for claimants to use to keep track of the places they have sought work.

The Board-promulgated form is weak because it asks only the most rudimentary questions:

  • Name of Employer, Address.
  • Name of person contacted.
  • Was an application completed?
  • Position Applied for.
  • Was Application taken?
  • Result.

IMGP0279The form does not ask whether or not the job applied for was within the claimant’s restrictions. The typical claimant fills out the form in a willfully vague manner, usually listing just the name of the employer, stating that the application was made “online,” and stating that the employer was “not hiring.” As Form C-258 does not request any information regarding follow-up, it is not done. The Judges of Compensation typically accepts the claimant’s testimony and the C-258 at “face value” and will find attachment.

Our “practical tips” focus on turning this process around – on using the information provided by the claimant to generate proofs that the work search was inadequate (or, in some cases, that the claimant committed fraud by identifying employers where work was not actually sought).

Practical tips:

    1. Job search questionnaires should be regularly sent to partially temporarily or partially permanently disabled workers. I recommend every thirty days, send Form 258.
    2. If the claimant fails to return a completed form, issue an RFA-2 to have the matter set down for a hearing on attachment. If the Form is vague or incomplete, issue an RFA-2 to have the matter set down for a hearing on attachment.
    3. Using the list of potential employers supplied by the claimant, ask your defense counsel subpoena the records of every single employer where the claimant alleges they applied for work. This sets up two defenses – an “attachment” defense and a potential fraud defense (Section 114a). You can also have a vocational counselor or the claims professional (adjuster) make contact with every employer identified (but remember, documentation of the response is key).
      • When the claimant has identified an employer – stating they applied for a job electronically at Walmart for example – and the employer responds to the subpoena duces tecum by stating they never received an employment application from the claimant, the employer/carrier is well armed to argue that the claimant has not pursued employment “at many places” wihtin her restrictions, and that benefits should be terminated.
      • Completing a work search questionnaire by reporting that work was sought and applications submitted to entities that deny contact with the claimant may constitute fraud under WCL Section 114a. Specifically, an argument should be made that the claimant “knowingly made a false statement or representation as to a material fact” in order to obtain a cash benefit.
    4. In some high-exposure, disputed cases, you may want to consider using a labor market survey to demonstrate suitable alternative employment.
    5. Where the entire job search was done “online” the claimant must still show proofs – usually email messages from the employer – stating that an application was received. As per the new decision, defense counsel should be prepared to cross-examine the claimant on the exact job offered and whether the job was within the medical restrictions of the claimant.

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Greg Lois is the managing partner of LOIS LLC and dedicates his practice to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 & 2017 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@loisllc.com