New York: Applying the “Attachment to the workforce” test to ongoing benefits.

Twice this year the Appellate Division has affirmed the rule that a claimant who is receiving an award for permanent partial disability has an ongoing obligation to show “attachment to the workforce” – that he is actively seeking a job within his restrictions – in order to continue to be eligible for weekly benefits. In both of these cases the Appellate court has instructed that where a claimant fails to seek employment, fails to participate in vocational rehabilitation, and fails to attend to a referral to educational services, the Board’s determination that the separation from the workforce was “voluntary” and therefore on further benefits must be paid by the carrier/employer.

On June 9th, the Appellate Panel ruled that a subsequent medical condition – which left the previously “partially” disabled claimant unable to work in his former industry but still able to do something – extinguished the claimant’s right to benefits.  In that admittedly compensable case, the claimant was collecting a partial permanent disability award for orthopedic injuries to his neck, shoulder, and back (the award was entered pursuant to stipulation). However, the claimant failed to demonstrate search for work within his restrictions.  The claimant also failed to attend to vocational rehabilitation or offered educational services.

The employer argued that benefits should be discontinued as the claimant failed to demonstrate “attachment to the workforce” in the form of a reasonable work search within his restrictions.  For his part, the claimant argued that he had developed a subsequent health condition which made work as a construction laborer impossible.  The Law Judge found that this factor mitigated the claimant’s obligation to show he was seeking work within his restrictions.

On June 9, 2011 the Appellate court overruled the workers’ compensation judge  – ruling that even a subsequent unrelated condition does not abrogate the claimant’s duty to seek work within his restrictions.

Keep this decision by your side!  

Even in a case where the employer has stipulated to the claimant;s ongoing permanent partial disability, benefits can be withdrawn if the claimant fails to seek accommodated work.

Remember: the burden is on the claimant to show a evidence of a  job search within his restrictions.

Case:  Bobbitt v. Peter Charbonneau Constr., 2011 N.Y. Slip Op. 04790 (App. Div. Decided June 9, 2011) andMatter of Hester v Homemakers Upstate Group, 2011 NY Slip Op 02091 [82 AD3d 1461] (App. Div. Decided March 24, 2011).

Greg Lois is the managing partner of LOIS LLC, a 19-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com