Today's Workers' Compensation Laws can be quite frustrating for Attorneys and Claimants alike. Claimants' Attorneys are often bombarded with calls related to their clients' frustrations with the way the law is written, the length of time of their case, the obligations imposed on them, and what they perceive to be the "upper hand" given to Carriers.
This page is aimed at addressing some of the more commonly complained about Workers' Compensation Law issues, discussing the current controlling case law, and analyzing both sides of the equation as well as suggesting ways to improve on these issues.
ATTACHMENT - SAY HELLO TO AMERICAN AXLE
American Axle, 2010 WL 438153 (N.Y. Work. Comp. Bd.) as often interpreted by the WCLJs substantially increases the burden on injured workers to show that they remain attached to the Labor Market when the issue of voluntary withdrawal is raised. Not only do injured workers now have to document in detail the many places they have looked for work within their restrictions, but they also need to provide documented evidence of participation in at least one NYSDOL re-employment services. "Active Participation" is defined in the Full Board’s decision as (1) calling for an appointment; (2) attending an orientation session; (3) meeting with a One-Stop counselor to develop a resume; (4) registering a resume in the One-Stop system; (5) following up to determine whether there were any job matches; and (6) following up on all job referrals and matches. The Full Board determined that merely signing up for VESID is insufficient; the injured worker must also follow through with all of the additional steps in order to receive Workers’ Compensation benefits. The Board also mentioned that although probative, utmost compliance with any carrier-recommended rehabilitation services may not be considered "active" enough for the Board's subsequent scrutiny. The Full Board stated as follows in American Axle: “While an employer or carrier may recommend rehabilitation services (WCL § 13-a[6]), participation in such services is not required in order to receive compensation benefits (Matter of Kalevas v J.H Williams & Co., 27 AD2d 22 [1966], affd 20 NY2d 812 [1967]). However, documentary evidence of voluntary, active and continued participation in such services in order to return to work within the work restrictions demonstrates an attachment to the labor market (see Matter of Acme Bus Company, 2009 NY Wrk. Comp. 40704511).
But while many Judges have interpreted the Board's Decision as an all inclusive one, requiring for example both a documented work search AND active participation in one of the listed re-employment services, a closer reading reveals that the Board's use of the word "or" should make each requirement independently sufficient. Of course when advising the Client it is better to ensure they do everything listed to avoid lengthy litigation and the possibility of losing the case based solely at a syntax disagreement.
The question remains, why would attachment be an issue at all? When did it all begin? After all, if the Claimant is partially disabled, the rate of compensation is also a partial rate, so if the insurance company does not have to pay a total rate, why would anyone care if the person who has lost some capacity as a result of a work accident decides not to work and live off the minimal amount being paid to them by the insurance?
Apparently it all began in Jordan v. Decorative Co. [230 N.Y. 522, 130 N.E. 634 (1921)]. In that case a Claimant with a partial disability was denied benefits because he was found to have refused light duty work. The same Claimant was granted benefits for a different time period because he showed he was reasonably seeking work within his limitations. The earliest Appellate Division case holding that the Claimant needed to maintain reasonable attachment to the labor market was decided in 1923 and based its legal conclusions on Jordan. That case was Dzink v. United States Railroad Administration, 204 A.D. 164, 197 N.Y.S. 665 (3d Dept. 1923). In that case the Appellate Division held that in order to ascertain the wage-earning capacity of the Claimant we must look not simply to the Claimant's ability to resume work with the same employer but rather his ability to find employment elsewhere, which he must reasonably demonstrate to be doing.
After Dzink there was a period of about 75 years in which there was not a lot of litigation on issues of attachment to the labor market. Whenever the issue was raised, the Board and the Courts would require that the Carrier show by substantial evidence that the Claimant's loss of wage earning capacity was caused "solely by factors unrelated to his disability" as determined in Mazziotto v. Brookfield Construction Co., 40 A.D.2d 245, 247, 338 N.Y.S.2d 1001 (3d Dept. 1972). Throughout this period, as evidenced in Yerry v. New York State Workers' Compensation Board, 93 A.D.2d 931, 462 N.Y.S.2d 319 (3d Dept. 1983), the Courts consistently held that so long as the Claimant's work-related disability was a contributing factor to the Claimant's failure to find employment there was no voluntary removal from the labor market.
The Carriers did not want to carry the burden of having to show that removal was due solely to factors other than the Claimant's disability alone, so they raised two arguments that were successful at resuscitating the old approach of looking at attachment: 1) That the Claimant had refused a light duty work offer, and 2) that the Claimant had voluntarily accepted retirement or severance benefits.
The first argument has always been pretty successful, although the offer must be of a position actually available and within the Claimant's medical restrictions to be real as held in Crosby v. SCM Corp., 106 A.D.2d 769, 770, 483 N.Y.S.2d 802 (3d Dept. 1984). If the Claimant refuses the light duty offer, he must make sure it is a reasonable decision, such as a refusal based on the fact that he wants to pursue vocational retraining and has enrolled in school. See Okonski v. Pollio Dairy Products, 184 A.D.2d 871, 872, 585 N.Y.S.2d 121 (3d Dept. 1992) and WCB# 2900-4074, United Parcel Service, 91 NYWCLR 1127 (1991).
The second argument has had its ups and downs, but ultimately in order for the Board to find no entitlement to reduced earnings and awards, the Carrier would have to produce substantial evidence that the retirement itself was unrelated to the Claimant's permanent partial disability as held in Stagnitta v. Consolidated Edison Co., 24 A.D.3d 1099, 1101, 805 N.Y.S.2d 714 (3d Dept. 2005); Mulligan v. Workers' Compensation Bd., 27 A.D.3d 848, 849, 810 N.Y.S.2d 1027, 814 N.Y.S.2d 349 (3d Dept., 2006); and West v. Niagara Mohawk Power Corp., 29 A.D.3d 1251, 1252, 816 N.Y.S.2d 221 (3d Dept. 2006).
The issue of voluntary withdrawal often becomes a problem in the following scenario: Claimant's doctor opines that Claimant is totally disabled; IME says moderately disabled. Claimant's employer offers a light duty position to Claimant based on IME report saying partial. Claimant refuses based on his own doctor's recommendations. When the case is litigated, the Judge agrees with the IME opinion of a moderate disability, and finds that the Claimant, by not taking the light duty offer from his employer, has voluntarily withdrawn from the labor market. The controlling case law, as seen in Testani v. Aramark Servs., 306 A.D.2d 709, 760 N.Y.S.2d 694 (3d Dept. 2003) is that the Claimant's reliance on the attending physician's opinion that he or she is totally disabled and unable to work at all, will not prevent the voluntary withdrawal defense from being successfully applied if the Board credits the IME's opinion that the Claimant is only partially disabled and capable of doing light duty work. At quick read it may sound like the voluntary withdrawal finding applies retroactively for the entire period in which the IME had been saying the Claimant is only partially disabled and the Claimant did not accept a light duty offer, rendering the Claimant not entitled to benefits retroactively. But that is not what this rule means. I argued and won on Appeal a case with these exact facts, and the Board Panel agreed with my argument that prior to the Law Judge's Decision determining that the Claimant was only partially disabled, the Claimant was entitled to rely on his doctor's opinion of total disability and was entitled to refuse the light duty position based on the belief that he was disabled from all work. His duty to look for work within his restrictions or accept a light duty position did not arise until after the finding by the Law Judge that he was only partially disabled, and therefore so long as he began looking for work after the Decision date and documented it properly there should be no suspension of benefits.
The Carrier presents a valid argument in saying that they should not be required to pay wage benefits to a Claimant who could work in some capacity and by virtue of that fact would likely not need the wage benefits at all. However, the counter-argument I see is that the Carrier gets paid a premium ahead of time in order to ensure that when an accident happens the disabled worker will receive the benefits they deserve. And the law already has set out the amount the injured worker deserves depending on the degree of disability. There is not a strong rational argument in making the partially disabled worker, whose life is already much more difficult because of the work accident, have to change career paths, go through re-training and schooling, or take on a light duty position so unfamiliar and distinct from what his previous position was just so that the insurance company can increase their profit margin by not having to pay them at all otherwise. If the injured worker is willing to live with less now that he is partially disabled, then so be it. It should be the Insurance Company's obligation to pay out the wage benefits in case of an accident, so long as the pay out is in an equitable share equivalent to the degree of disability.
These additional burdens are simply unfairly placed on a party who is already been a victim of life as it is.
