Labor Market Attachment
Under the New York State Workers’ Compensation Law, an injured worker – also known as the Claimant, is required to maintain attachment to the labor market.
What does that mean?
This means that if you are found to be less than 100% Temporarily Totally (TT) disabled: by your own treating physician, by another physician (typically an IME), a Workers’ Compensation Law Judge (WCLJ) finds you are less than 100% disabled -even after litigation, or you agree to a finding of less than TT, you, the Claimant are OBLIGATED under the WC Law to remain attached to the labor market.
BACKGROUND: WCL and Case Law
Pursuant to American Axle, NY Work Comp Bd 80303659, 2010 WL 438153
[C]laimant’s active and continued participation in any one of the following would be sufficient to show a good faith job search and/or attachment to the labor market: (1) one of New York State’s Department of Labor’s reemployment services, (2) the services offered by a One Stop Career Center, (3) a retraining program, (4) a rehabilitation program by VESID or other board approved rehabilitation program, (5) a job service commonly utilized to secure work within a specific industry, or (6) enrollment and full time attendance in an accredited educational institution to pursue employment within the work restrictions. (emphasis added).
Example:
Jen, our Claimant, gets hurt at work while lifting a box. Jen goes to her doctor who opines she is 100% TT disabled from the date of injury. A few months after the initial date of injury, she goes to an Independent Medical Examination (IME). An IME is the Insurance Carrier’s Consultant. The IME physician opines the Claimant is 50% disabled.
So, what happens next?
Carrier wants to reduce payments
A hearing is scheduled before the WCLJ.
Claimant states, “Well my doctor still has me at 100%, and I cannot go back to work.”
Your attorney says, “Yes, that is true. We have some options.”
- We can choose to litigate the issue. We take our chances and let the WCLJ decide. OR
- We agree to split the medical opinions.
WHAT HAPPENS IN THE MEANTIME?
In the first scenario: Your rate of compensation will get tentatively reduced to the 50% rate while the Claimant’s degree of disability is litigated.
The downside to this is that you as the Claimant would have to live on the 50% rate of monetary (otherwise known as “Indemnity”) payments while litigation is pending.
This could be several months. During this time, your Attorney and the Insurance Company’s Attorney will complete the deposition testimony of the doctors. Then, argue verbally or in writing before the WCLJ. The WCLJ will then make a decision.
In the second scenario: Your Attorney and the Insurance Carrier’s Attorney would, upon agreement of their respective clients, agree to split the medical opinons and the degree of disability at 75%.
Claimant’s rate is now at an agreed upon rate of 75% even though neither doctor has that exact opinion.
WHY LITIGATE?
Litigate when medical opinions are so disparate that you ultimately think the outcome will be in your favor.
Your doctor opines you are 100% disabled for ALL types of work, not just your job.
You can afford to take a temporary financial decrease in payments pending the outcome in litigation.
WHY COMPROMISE?
Even if you are adamant that you are 100% disabled for your job, you may not be 100% disabled for ALL types of work.
You cannot afford a temporary reduction in benefits pending litigation.
You may be able to RTW on a lite duty basis and claim RE.
WHAT YOU NEED TO DO
Contact your attorney to discuss your particular situation.
You are still considered “employed” by your employer.
See if your employer can accommodate your current restrictions.
Look for work within your restrictions.
Complete work search forms
Contact ACCES-VR
Register with One-Stop Dept. of Labor
Contact Us For Answers to Specific Questions
Contact Cole, Sorrentino, Hurley, Hewner & Gambino, P.C., online or call to arrange your initial consultation with one of our
Buffalo Workers Compensation Lawyers. We welcome the opportunity to represent you.
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