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Full Board Reverses Panel Decision That Provided Exception to Delta Airlines Attachment Decision

One year ago we reported on the Board Panel decision in Barbella Environmental Tech, which provided an exception to the Delta Airlines ruling on labor market attachment. The ruling deemed claimants who were still employed by the employer of record to be attached to the labor market without the need to produce proof of same as required by the American Axle decision. The Barbella Board Panel decision narrowed the ruling in cases like Delta Airlines, finding that only in cases where there is objective medical evidence that the claimant could return to work with the employer of record and where the claimant has a realistic expectation to return to work with the employer is the claimant relieved of the need to prove labor market attachment.

The Full Board reviewed the Barbella decision earlier this year and reversed the Board Panel decision in Barbella. The Full Board decided not to adopt the two-pronged test created by the Barbella panel’s majority and unfortunately affirmed the rule that a claimant has not voluntarily withdrawn from the labor market where the claimant continues to be employed by the employer and the medical evidence in the record establishes that a claimant is unable to return to work.This decision will make it more difficult to defend against indemnity benefits in claims where a claimant remains “on the books” with the employer of record.

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