When your doctor and/or the Law Judge have determined that you have a partial disability and therefore could work within certain restrictions, you must look for work within those restrictions. If you don't sufficiently show that you are actively trying to find work that you can perform, you risk losing entitlement to benefits altogether by falling victim to what is known as a "finding of voluntary withdrawal from the labor market".
In the legal world this issue is known as "attachment". There are two circumstances in which they could come up, and both of them require that either your treating doctor OR the Workers' Compensation Board has determined that you are only partially disabled and could so some work within certain medical restrictions. Remember, it does not matter that you are unable to perform your regular employment duties within your own field (such as construction, mechanic, etc). All that matters is that there is some job somewhere that you could safely perform without aggravating your condition.
The first scenario where this issue could come up (again, given that either your doctor or the WCB has determined you are only partially disabled) is when your employer offers you a light duty position within the company. The offer must be real, and must be within your medical restrictions to be a valid light duty offer, but, if they offer it, you should accept it.
If your company does not offer you a light duty position, or if you ask and they do not have one, your should then make sure you look for work within your restrictions somewhere else. Even if your employer is holding your position open, you have a duty to look for work within your restrictions AND you must document your work search in detail, with a log indicating the date of the search, time of the search, whether you applied in person and online, what you did to apply, who you spoke or corresponded with, and what the outcome was. You should also document the specific role description. In order to be a true search it must be within your restrictions.
"I'M A CONSTRUCTION WORKER, HOW CAN THEY EXPECT ME TO DO A DESK JOB?"
They just do, it's the law, and it is there to ensure the labor market stays active. And if for whatever reason the only factor keeping you from getting a light duty job is a lack of skill or training, then you should take advantage of the vocational re-training programs that are offered free of charge for those who are partially disabled and unable to perform their old duties. The NYS Department of Labor Operates One Stop Centers, where Disability Program Navigators help you get a job. For the office nearest you call (888) 469-7365. Another good resource is VESID (Vocational and Educational Services for Persons with Disabilities). To find a VESID office nearest you call (800) 222-5627.
MAKING SURE YOU DO EVERYTHING YOU CAN
The new case law is often being interpreted as requiring that you not only document your work search in detail and provide documented evidence of that search, but also that you contact the Department of Labor (DOL) and VESID in order to show that you are serious about remaining attached to the labor market.
YOU DON'T NEED TO ACTUALLY FIND A JOB
It will be extremely difficult to find a job with medical restrictions and a pending Workers' Compensation claim, but in order to demonstrate attachment to the labor market you don't need to secure a job, you just need to look for one and be able to prove that you were looking. Just remember that the proof has to be in detailed documented form.
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