Hamberger & Weiss LLP

Appellate Division Affirms Attachment to Labor Market Requirements

On April 13, 2017, the Appellate Division, Third Department decided Palmer v. Champlain Valley Specialty. This labor market attachment case involved a claimant who sought vocational services with the ACCES-VR program. However, after claimant informed ACCES-VR that she was contemplating surgery, the services provided by ACCES-VR were significantly curtailed. None of claimant’s medical records indicated a surgery recommendation, and none of the treating physicians ever requested or recommended surgery. During testimony, claimant stated that she decided not to have surgery during the summer of 2014 (to the extent that it was ever contemplated to begin with), but did not meet again with ACCES-VR to re-commence job search services until March 2015, and did not prepare a resume with the service until shortly before her May 2015 workers’ compensation hearing. The Board found claimant had not actively participated with the ACCES-VR program, and had not acted in good faith. The Board also found claimant’s independent work search, consisting of only 4 job applications without any documentary proof, insufficient.

The claimant appealed, and the Appellate Division affirmed, holding that the Board’s findings were supported by substantial evidence.

This decision underscores the fact that merely signing up with a one-stop career center without active participation does not automatically render a claimant attached to the labor market. It further underscores the fact that a claimant’s actions must be taken in good faith for labor market attachment purposes. The Court will affirm Board findings of insufficient labor market attachment proof when the record contains evidence that a claimant acted in bad faith, like the claimant’s misrepresentations about a surgery never recommended by her doctors in this case.

Finally, remember that even though the 2017 Reform legislation relieves a claimant receiving benefits at the time of classification from proving attachment to the labor market, attachment is still a requirement for receipt of temporary partial disability benefits.

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