Hamberger & Weiss LLP

Claimants Trying to Prove Re-Attachment to Labor Market Must Show Connection Between Unsuccessful Job Search and Work Injury

On 12/14/17, the Appellate Division, Third Department, decided Pontillo v. Consolidated Edison of New York. The Court held that when a claimant voluntarily retires and tries to claim re-attachment to the labor market, mere production of evidence of an unsuccessful job search by itself is insufficient. The claimant must also prove that his or her “earning capacity and …ability to find comparable employment has been adversely affected by his or her disability,” and that “…other factors totally unrelated to [the] disability did not cause the adverse effect on his or her earning capacity.” (internal quote omitted).

In Pontillo, the claimant had an established claim for pulmonary fibrosis. The employer provided a light-duty job, which claimant worked at for two days before retiring. He later claimed re-attachment to the labor market. He was never classified with a permanent disability. Claimant produced evidence of an unsuccessful job search, and the WCLJ made awards, finding him re-attached to the labor market. The employer appealed, arguing that claimant failed to prove his unsuccessful job search was causally related to his work injury. The Board Panel affirmed, and the employer appealed to the Appellate Division.

The Court reversed, holding that the Board failed to address the employer’s burden of proof argument, and remanded for further proceedings. Based on this holding, merely producing proof of an unsuccessful job search after voluntary removal from the labor market is insufficient. The claimant must also affirmatively prove a causal nexus between his or her work injury and the unsuccessful job search to re-attach to the labor market.

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