There have been many changes to New York’s Workers’ Compensation Law as we begin to see the full effects of the statutory changes that have been wrought by the 2007 legislation. However, one of the biggest changes that have taken place has resulted from “statutory” interpretation by the Workers’ Compensation Board and given weight by the Appellate Division. Voluntary withdrawal from the labor market is not a new concept. Instead it has evolved from very narrow beginnings into the bane of disabled claimants. It has become the favorite cudgel of the carriers and is raised as an issue in knee-jerk fashion. Despite the frequency of use as a carrier’s weapon, there appears to be a lack of understanding of the elements of the defense. In conjunction with the concept of voluntary withdrawal, it is necessary to analyze the concept of attachment to the labor market.
Attachment to the labor market continues to be refined through adjudication by the Board, with several intervening decisions entered by the Appellate Division, and a notable decision by the Court of Appeals. The decisions center upon the effort made by a partially disabled claimant to secure a position that is consistent with his/her physical limitations. This determination is obviously fraught with subjective factors, but this has not stopped the Board from issuing onerous requirements upon claimants that are exacerbated by high unemployment. Sufficient attachment presently requires a claimant to register with OneStop and make regular searches as well as partake in the vocational services offered by the Department of Labor, including workshops in resume drafting, interview techniques and the like. The Law Judge will review the claimant’s efforts and will subjectively consider whether or not a claimant’s efforts have been, for lack of a better word, sincere. There is no gold standard and requirements differ from hearing point to hearing point and judge to judge. A practitioner should advise his/her client to conduct an exhaustive search and be able to provide documentary evidence, which should include applications, names, dates and follow-up.
For the reasons stated the process is arbitrary, burdensome and quite frankly, illogical. The process is antithetical to any concept of vocational rehabilitation and undermines the Board’s lip service to vocational assessment. What is truly ponderous is not merely the roulette style of attachment adjudication. The question that must be objectively asked is how the Board can engage in vocational analysis when a claimant has not reached maximum medical improvement? In other words, how can the Board credibly require a claimant to achieve vocational rehabilitation when they have not been physically rehabilitated from his/her causally related injuries? The fact that we even need to address this issue is proof positive that the Board has no qualms about trampling on the remedial intent of this statute and that its sole intent is to assist carriers in their quest to limit indemnity payments.
The Social Security Administration has created a systematic and somewhat objective approach to vocational assessment. Although the SSA adjudicates cases on an all or none basis, it is still useful to review the basic process utilized by the SSA in its claims adjudication process. An applicant is expected to provide a work and educational history as part of the Application process. The SSA utilizes the DOT (Dictionary of Occupational Titles) to determine the nature of the past relevant work performed by the applicant. Education and training are considered along with the physical and skill-centered requirements of that work. The ultimate decision as to disability considers the applicant’s remaining physical capacity to perform a range of work skills and then determines whether or not the applicant has transferable skills to enable him/her to secure gainful employment in a type of job that he/she can physically perform. The SSA often utilizes the opinion of vocational expert in the adjudication process. The key, however, is that the SSA usually withholds a determination to permit a claimant to achieve maximum medical employment. In instances where recipients of benefits are younger individuals, the SSA will periodically review eligibility for continued benefits. It is not a perfect system by any means, but the standards are the same whether you are in Jericho or Topeka.
The Board does not provide neutral vocational evaluation. The Board requires a claimant to show attachment as soon as a finding of partial disability is made, even if the accident occurred two months prior. Often, a practitioner will attend numerous hearings on the issue of attachment before the issue of permanency is even explored. The issue has become a cottage industry for carrier’s counsel and regularly trumps the issue of treatment and FCRD. The Board will argue that treatment issues have been alleviated by the Medical Treatment Guidelines (they have simply been removed from a formal adjudicatory process) and that the claimant is directed to provide evidence of skills and education. Unfortunately, these factors are only considered at the time when permanency and loss of wage earning capacity are adjudicated. In the meantime, for at least the first two years of a claim, a claimant who is uncertain as to his/her permanent limitations is forced to look for employment in what is clearly an effort to mitigate the damages sustained by carriers.
The final injustice (not really – just for this article) is that the Board is permitting carriers to harass claimants who have been permanently disabled for years. Carriers are investigating the work search efforts of claimants who have been disabled for a decade or more. These individuals settled their cases well before these concepts existed and therefore, negotiated their rights under a different set of rules. It is an utter travesty that the Board is retroactively applying the concept of voluntary withdrawal to these individuals most of whom are advanced in years and who are unaware of these drastic changes. Nevertheless, these claimants must be advised of their new “obligations”.
Suffice it to say, be prepared! Tell your clients that they must do more than just enough as the standard of attachment is on the march.
Written by: Craig Tortora
