Under 12 NYCRR 300.23(c)(1,), in any case where the board has made an award for compensation for … permanent partial disability, “payments shall not be suspended or modified until an application on a prescribed form accompanied by supporting evidence, is made to reconsider the degree of impairment or wage-earning capacity…and the Board has made final determination of such application finding that suspension or modification is justified.” The prescribed form referred to in the statute is the RB-89.
Wage Earning Capacity
As to the determination of “wage earning capacity,” WCL 15(5-a) provides that the “wage earning capacity of an injured employee in cases of partial disability shall be determined by [her] actual earnings, provided, however that if [s]he has no actual earnings the board may in the interest of justice fix such wage earning capacity as shall be reasonable, but not in excess of seventy-five per centum of [her] former full time actual earnings, having due regard to the nature of [her] injury and [her] physical impairment.”
A permanent partial disability classification permits the Board to apply a rebuttable inference that any subsequent reduction in wages is attributable to the disability (Matter of Mazziotto v Brookfield Const. Co., 40 AD2d 245 [1972]; Matter of Coyle v Intermagnetics Corp., 267 AD2d 621 [1999]). “While a reduced earnings award may be denied where the reduction in earning capacity results from age, economic conditions or other factors unrelated to the disability, such an award will not be disturbed absent proof that the reduction was solely due to such unrelated factors” (Coyle, 267 AD2d 621 [1999]). The carrier may also negate the inference by proof that a claimant has voluntarily withdrawn from the labor market or has not maintained an attachment to the labor market (see Matter of German v Target Corp., 77 AD3d 1126 [2010]).
Developing the record.
A carrier’s “letter to claimant with a ‘recommendation’ that he seek out and attend job search assistance and/or rehabilitation services [does] not amount to an ‘offer’ of such services” that would support the carrier’s request to reopen the claim (Matter of Danin v Stop & Shop, 115 AD3d 1077 [2014]).
However, proof of a claimant’s response, or lack thereof, to other communications from the carrier, such as an offer of retraining or job search assistance by a firm in the business of providing such services, would be sufficient to “raise an issue of fact about whether something other than the claimant’s disability was the reason for the continued loss of wages” (Danin, 115 AD3d 1077, [2014]; see also Matter of Centro Systems, 2013 NY Wrk Comp G0262755).
Practical Tips on Attachment Defenses
Accordingly, for any future claim in which the claimant was found to have a permanent partial disability, a carrier must do the following when they wish to raise the issue of attachment:
- File an RB-89 asking that the Board reopen the claim. Make sure that in Section 9 of the cover sheet “Rehearing or reopening “ is checked off.
- In Section 10, state the following basis for review: “The claimant’s reduction in wage earning capacity post-classification was due solely the claimant’s failure to attach to the labor market.”
- Attach all documentary evidence. The documentary evidence must include more than just a recommendation to provide search assistance or rehabilitation services. Proper documentary evidence should include proof of the claimant’s response or lack of response to an offer of retraining or job assistance services.
- Make sure the claimant’s attorney was copied on every letter provided as documentary evidence.
