Hamberger & Weiss LLP


Board Clarifies Law on Attachment to Labor Market, Provides New Forms in July 2017 Subject Number

Subject Number 046-958 provides an outline of the Board’s current interpretation of the state-of-the-law on labor market attachment. The Subject Number leads by noting that the "only significant recent change" in the Workers' Compensation Law with respect to labor market attachment arose from Part NNN of Chapter 59, Laws of 2017, Subpart A, which among other things amended WCL Section 15(3)(w) to eliminate the need for claimants found entitled to benefits at the time of classification to demonstrate ongoing attachment to the labor market. The Board is careful to note that temporarily partially disabled claimants and those claimants not attached to the labor (or otherwise not entitled to benefits) at the time of classification remain obligated to demonstrate their attachment to the labor market. 

The Subject Number reminds readers that claimants can demonstrate labor market attachment by adhering to the now familiar American Axle standard that has been the state of the law since 2010. The Board recognizes that many job applications are completed online via email or internet submission and permits modification of the American Axle standard under the Suffolk County Health Services case to allow for this. Most importantly, the Subject Number warns claimants that an independent job search must be "timely, diligent, and persistent." Moreover, a claimant engaged in other attachment to the labor market efforts such as use of a One-Stop career center must provide documentation showing the claimant's "active participation" in these efforts. 

To assist claimants in documenting their attachment to the labor market efforts, the Board has issued a revised C-258 form and introduced a new form, the C-258.1. The C-258 form now allows claimants to enter information about other attachment efforts such as participation at a One-Stop career center, rehabilitation or retraining efforts, and attendance at an accredited educational institution. Claimants seeking to prove labor market attachment through an independent job search are directed to use the new C-258.1 form, which provides more direction and space for claimants to produce the information required by the American Axle decision in detailing their independent job search efforts. 

The Board also provides a reminder in the Subject Number that although a claimant found entitled to benefits at the time of classification need not produce proof of attachment to the labor market, there can remain a question as to whether the claimant's disability was the reason why the claimant ceased full-time work. In citing to the Launer and Smith cases, the Board is suggesting that employers and carriers look carefully at the reasons for a claimant's reduction in earnings before accepting reduced earnings awards. However, the claimants in Smith and Launer were done in by their own testimony, which may prove difficult to obtain given the Board's stinginess with re-openings on classified claims. 

The Board’s comments here should also serve as a reminder that although a claimant found entitled to benefits at the time of classification need not demonstrate ongoing labor market attachment, we believe that the defense of voluntary withdrawal from the labor market remains available for employers and carriers to pursue. We would recommend reading our article from our May 2017 newsletter for recommendations on how to pursue the voluntary withdrawal defense after classification. In short, employers and carriers will need to compile evidence not unlike that which was used in the past to seek a re-opening of claims following classification such as questionnaires sent to the claimant asking if the claimant was looking for work, offers of vocational services, job leads sent to the claimant, and the results of follow up on those leads.

We believe that the Subject Number will prove useful in day-to-day litigation on labor market attachment issues in temporary disability cases. This Subject Number is in alignment with the position we have been taking since the American Axle decision regarding claimant's requirements for proving labor market attachment and will provide a further point of authority to direct WCLJs and the claimant's bar in arguments over labor market attachment.

If you have any questions about the defense of labor market attachment or interpretation of this Subject Number, please do not hesitate to contact any of our attorneys.

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