Challenging Labor Market Attachment in New York

What is Labor Market Attachment

In New York, a temporarily partially disabled claimant must demonstrate an attachment to the labor market to be entitled to continuing compensation benefits. A recently filed Full Board Decision increased the claimant’s burden of proof for a sufficient finding of attachment to the labor market (Matter of Suffolk County Health Services). Raising the issue of labor market attachment is beneficial in reducing the overall exposure of the claim as it may result in a suspension of benefits due to the claimant’s failure to attach themselves to the labor market.  Also, the exposure of the claim may be reduced if the claimant is successful in finding new employment as a result of the carrier raising the issue of labor market attachment.

The Decision in American Axle

For benefits to continue, previous case law determined that the claimant must be produce documentary evidence showing that he/she is actively participating in One Stop or Workforce1.  If the claimant cannot participate in One Stop/Workforce1, the claimant may conduct an independent job search in addition to participating in one of the following: retraining program, a rehabilitation program, a job service commonly utilized to secure work within a specific industry, or enrollment and full time attendance in an accredited educational institution to pursue employment within the work restrictions.

With regard to independent job searches, the claimant must at a minimum produce documentary evidence specifying the day, month and year of the contact; the name and address of the employer; the name and telephone number of the person with whom employment was discussed; the type of job sought; and the response of the potential employer.

Recent case law.

Recently, in Matter of Suffolk County Health Services, the Full Board recognized that the requirements for labor market attachment must be modified due to the increase of on-line applications.  Matter of Suffolk County Health Services now requires claimants to provide an email confirmation of the application submitted. Claimants will now be expected to present evidence of the following:

  1. Name of the company
  2. Website used to apply
  3. Email confirmation and/or confirmation number per submission.

Impact on defending cases

The increased requirements for a finding of labor market attachment is beneficial for the carrier, as it requires the claimant to prove that a good faith effort was made in finding new employment within the claimant’s restrictions.  If the claimant is unable to produce the evidence as per case law on the date of the claimant’s labor market attachment testimony, the carrier will be successful in suspending indemnity benefits.

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Usda Hussain is an associate attorney at Lois LLC where she defends employers and carriers in New York workers’ compensation claims. Usra can be reached directly at uhussain@lois-llc.com or 201-880-7213.