What does Zamora mean for the voluntary withdrawal defense?

In order to demonstrate attachment to the labor market, the claimant must show:

  1. the many places they have looked for work within their restrictions AND
  2. provide documented evidence of active participation in at least one NYSDOL re-employment service.

“Active Participation” is defined in the case law as

  1. calling for an appointment at OneStop or VESID;
  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 case law instructs 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.

New case: Zamora.

In Zamora, New York’s highest court (“The Court of Appeals”) decided that a claimant must look for “alternative work consistent with his or her physical limitations, or at least show reasonable efforts at finding such work” to “prove to the Board that the cause of his or her reduced income is a disability, rather than unwillingness to work again.”

In reaching its decision on this question, the Board will, of course, consider the circumstances under which claimant originally stopped full-duty work. “If the Board determines that a workers’ compensation claimant has a permanent partial disability and that the claimant retired from his or her job due to that disability, an inference that his or her reduced future earnings resulted from the disability may be drawn” Burns v Varriale, 9 NY3d 207, 216 (2007).
However, the Court of Appeals went on to instruct that the inference may be drawn that the inability to find a job is caused by the disability – but that inference is not a presumption.

Practical tips.

The “attachment” defense applies anytime the claimant has a partial disability. The attachment defense applies in cases where the claimant is classified – as in Zamora – and in cases were the claimant is temporarily partially disabled.

Setting up an attachment defense.

  • Send claimant work search forms (C-258) to obtain a record of the locations where employment was sought.
  • Consider using subpoenas to follow up on the claimant – seeking the employment application (if available).
  • File an RFA-2 to bring matter to the attention of the workers’ compensation law judge.

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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