Hamberger & Weiss LLP


Board Panel Steps Back from Delta Airlines Rule in New Labor Market Attachment Decision

On August 7, 2017, a new Board Panel Decision, Barbella Environmental Tech., WCB #G0796969 (Aug. 7. 2017) introduced a change in the law on labor market attachment by backing away from the rule created by the Board Panel decision in Delta Airlines and the Full Board decision in Cranesville Block which allows claimants who were still employed by the employer of record to be found attached to the labor market without the need to produce proof of same as required by the American Axle decision. The Board Panel in Barbella was split, with Commissioners Ausili and Hull in the majority and Commissioner Levelt in dissent. The split decision gives the claimant an appeal by right to the Full Board. The majority opinion outlined a two-pronged test for claimants who remain “on-the-books” at the employer of record, rather than applying a conclusive presumption that those claimants are attached.

The new test has two elements:

  1. Does the Board file contain objective medical evidence that the claimant can return to work with the employer?
  2. Does the claimant have a realistic expectation to return to work with the employer?

If the answer to both questions is yes, then the claimant is attached to the labor market.  If the answer to one or both questions is no, then the claimant needs to satisfy the requirements of American Axle to prove labor market attachment. This rule will apply only to claimants during a period of temporary disability because the 2017 statutory changes to §15(3)(w) provide that permanently partially disabled claimants entitled to benefits at the time of classification no longer need to demonstrate ongoing attachment to the labor market.

The majority said that the claimant in Barbella, a union member who was partially disabled and potentially pending surgery, did not have objective medical evidence that he could return to work for the employer. Thus, he did not have a reasonable expectation to return to work and perform his essential job functions. The claimant also did not meet the requirements for labor market attachment outlined in American Axle, so his awards were rescinded until he proved reattachment to the labor market.

This new rule gives carriers and employers another tool to limit indemnity liability during the period of temporary disability. We expect that the claimant will take the case to the Full Board and we’ll plan to report on that decision when it becomes available.

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