Insufficient Job Search Ruled in Favor of Employer

LOIS recently won a trial in which the claimant refused a light duty offer and submitted a job search that was determined insufficient by the Law Judge at the New York Workers’ Compensation Board. By winning this trial, all indemnity benefits were terminated. This decision illustrates the value of a carefully-prepared cross examination when challenging the validity of a work search conducted by the claimant.

The claimant, a driver, sustained an injury to his back. After depositions were completed on the claimant’s degree of disability, the Law Judge determined that the claimant has a marked (75%) temporary disability. A few weeks later, the employer made a job offer within the claimant’s restrictions, offering the claimant a light duty job complaint equal to sedentary work, with restrictions on lifting more than twenty pounds. The letter was submitted to the Board, so all parties were made aware of the offer. Further, a deadline was given for the claimant to respond to the letter. The employer later notified our office that the claimant responded to the letter by meeting with them in person and presenting a medical report giving a total disability.

The claimant submitted numerous job applications to the Board individually. Several applications from various online jobs sites were submitted. Among the jobs the claimant applied for were for a guest service agent at a hotel, numerous restaurant host jobs, cashier jobs, associate veterinarian, physical therapy aide, YouTube Host for Cartoon Channel and door greeter.

The relevant caselaw, Matter of American Axle, 2010 NY Wrk Comp 80303659, requires that the claimant is actively seeking work within the restrictions through an independent job search that is timely, diligent, and persistent. In this case, we were successful in eliciting testimony convincing the Law Judge that not only did the claimant remove himself from the labor market by refusing a light duty offer, but that he also applied to jobs that were both outside his ability and medical restrictions. As a result, indemnity benefits were suspended.