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Appellate Division Affirms Board Decision Denying Benefits to Claimant Working Reduced Hours

On 10/5/17, the Appellate Division, Third Department, decided Romanko v. New York University. This decision holds that a claimant who voluntarily self-limits her participation in the labor force is not entitled to indemnity awards. The claimant was an assistant finance director. After resigning her employment, she looked for work and eventually alleged re-attachment to the labor market after taking a job as an accountant working only six hours per week. Claimant alleged the six-hours-per-week job was in line with the medical restrictions recommended by her treating physician. The Board rejected the treating physician’s restrictions in favor of an opinion from a different doctor who did not limit the number of hours claimant could work per week. The Board found that the claimant had not sufficiently re-attached to the labor market and the claimant appealed. The Appellate Division affirmed, holding that a claimant who does not search for employment consistent with his or her medical restrictions (in this case, no hourly restrictions) is not attached to the labor market even if engaged in token participation in the work force.

Note that the claimant's treating physician opined that the claimant could only work one day per week and the Board rejected that opinion in favor of the carrier's consultant's opinion that the claimant was not restricted from full-time work. Employers and carriers should keep this in mind when faced with the argument from claimants that they are entitled to rely on their physician's opinions concerning work ability and degree of disability. With respect to labor market attachment, it is the Board's judgment—not the claimant's or claimant's physician's opinion—on degree of disability and work restrictions that controls.

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