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Appellate Division Rules that PPD Claimant not attached to Labor Market before Statute Change Must Demonstrate Attachment to Labor Market for Awards

On 5/30/19 the Appellate Division, Third Department decided Scott v. Visiting Nurse Services.  This decision holds that the 2017 labor market attachment statutory amendment to WCL §15(3)(w) does not apply retroactively to claimants who have already been found not attached to the labor market before the amendment took effect.
This case involved a permanently partially disabled claimant classified in 1998, who was eligible for awards at the time of classification. In 2014, the carrier re-opened the claim on labor market attachment, and the Board found claimant not attached in a 6/27/16 Board Panel Decision.  After the new statute took effect in April, 2017, claimant re-opened the claim and requested awards, arguing that the new statute removed her obligation to demonstrate ongoing attachment to the labor market.  The Board denied her request, citing the previous finding that she was not attached before the new statute took effect.  Claimant appealed to the Appellate Division.  The court held that nothing in the statute or its legislative history suggests that it was intended to retroactively apply in cases where a claimant has already been found not attached to the labor market before the statute took effect.

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