Hamberger & Weiss LLP

Appellate Division Rules Voluntarily Retired Claimant Must Prove Loss in Earnings Due to Work Injury, Not Merely Present Job Search

On 1/31/19, the Appellate Division, Third Department, decided Figueroa v. Consolidated Edison Co. of N.Y., Inc. This interesting decision holds that when a claimant has voluntarily retired from employment and tries to prove re-attachment to the labor market, he or she must not only produce proof complying with the American Axle or Suffolk County Health Services standards, but also produce proof that his or her disability is a factor in the inability to obtain employment.

The claimant in this case was classified with a permanent partial disability and found to have voluntarily retired from her position with the employer. She later alleged re-attachment to the labor market and produced documents indicating a work search and active participation in a one-stop vocational rehabilitation program. However, the court held that this by itself is not enough. The court stated, “Where a claimant has voluntarily retired, but claims to have later re-attached to the labor market, he or she must demonstrate that his or her earning capacity and his or her ability to find comparable employment has been adversely affected by his or her disability.” The court explained, “This burden requires a claimant to demonstrate that other factors totally unrelated to his or her employment did not cause the adverse effect on his or her earning capacity.”

Many practitioners had previously assumed that the production of documents complying with American Axle or Suffolk County Health Services constituted enough proof that claimant’s disability in some way contributed to his or her inability to find work. This decision clearly states that this is not the case and that claimant must produce additional independent proof above and beyond an adequate work search or active participation in a one-stop career rehabilitation program. It remains an open question at this time what would be considered enough proof to meet the standard described by the court.

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