The Full Board issued a new and important decision on February 4, 2010 regarding Work Search Requirements which apply to all injured workers who claim (or have been adjudicated to suffer) a temporary partial or permanent partial disability. American Axle, 2010 WL 438153 (N.Y. Work. Comp. Bd.) substantially increases the burden on injured workers to do one of the following, or perhaps several as a best practice, in order to be found attached to the labor market (in order to receive ongoing money benefits):
Option A:
Provide Documentary Evidence of Active Participation in one or more of the following New York State Department of Labor re-employment services:
* One Stop Career Centers (available in every County in New York, likely located with the unemployment insurance office).... Call 1-877-348-0502;
* VESID (Vocational and Educational Services for Individuals with Disabilities).... Call 1-800-222-JOBS (5627).
"Active Participation" is defined in the Full Board’s decision as (1) calling for an appointment; (2) attending an orientation session; (3) meeting with a One-Stop counselor to develop a resume; (4) registering a resume in the One-Stop system; (5) following up to determine whether there were any job matches; and (6) following up on all job referrals and matches. The Full Board determined that merely signing up for VESID is insufficient; the injured worker must also follow through with all of the additional steps in order to receive Workers’ Compensation benefits.
Option B:
Provide documentary evidence showing enrollment and attendance full time as a student in an accredited educational institution in order to pursue employment within the injured worker's work restrictions. Here, the Full Board cited the case of Matter of Dooley v NYS Bronx Children's Psychiatric Hospital, 56 AD2d 680 (1977). We can still argue that "full-time" is defined in individual cases by the remaining capacity of the injured worker, such that where an injured worker has only the capacity to attend on a half-time basis, that should suffice to meet the standard. However, this approach is not best practice since it raises additional burdens of proof and persuasion, invites litigation from the insurance companies and leaves the injured worker subject to the Board's rather chaotic, flip-flopping determinations.
Option C:
Comply to the utmost with any carrier-recommended rehabilitation services while recognizing that even full compliance may not be considered "active" enough for the Board's subsequent scrutiny. The Full Board stated as follows in American Axle: “While an employer or carrier may recommend rehabilitation services (WCL §13-a[6]), participation in such services is not required in order to receive compensation benefits (Matter of Kalevas v J.H Williams & Co., 27 AD2d 22 [1966],affd20 NY2d 812 [1967]). However, documentary evidence of voluntary, active and continued participation in such services in order to return to work within the work restrictions demonstrates an attachment to the labor market (see Matter of Acme Bus Company, 2009 NY Wrk. Comp. 40704511).
Option D:
Call our office for our newly-revised form modeled directly upon the Full Board's specific requirements listed in American Axle. Complete this documentation while also ensuring that an "active" search is independently maintained (apply to at least one employer on every business day, if humanly possible). This is unfortunately what it now takes to get ongoing benefits in a Workers' Compensation world that’s become more and more friendly to insurance companies.
Workers who are found "totally disabled" by a Workers' Compensation Law Judge need not look for work while under such a severe disability. However, generally a worker who is partially disabled has a legal duty under well-settled law to search for work within his or her restrictions. This legal duty is known as the "Work-Search Requirement." Thus, it may not be enough that a worker’s own physician considers him/her to be “totally” disabled. The only opinion which determines whether or not the worker must continue looking for work is that which is expressed by the Workers’ Compensation Law Judge or a higher court of appeal. Again, any judicial decision finding the worker to suffer less than a "total" disability means that the worker may likely be required to search "diligently, and in good faith" for work of any kind.
For example, an injured worker named "Dave" suffers a Permanent Partial Disability due to a work-related accident. Dave is not expected to ever get better, medically speaking. Dave's physician states that he can lift up to 10 pounds in a job which must allow him to sit or stand at will, and Dave should also work no more than 20 hours per week. Here, even though Dave suffers a "Permanent Disability" which is indeed very severe, because Dave does not suffer what is referred to as a "total" disability, he must still search for work within his prescribed limitations.
If Dave does not search "diligently, and in good faith" for any available work within his restrictions, the law may allow the Workers' Compensation insurance company for his former employer to discontinue paying weekly benefits. The insurance company may not discontinue payment for causally-related medical services and medications, however. In short, Dave may not receive the money to which he would otherwise be entitled if he does not do everything within his remaining capacity to try and rejoin the labor force.
Thus, even the most severely partially disabled claimant should still likely place applications with as many potential employers as possible each month. When the worker's benefit checks are on the line, it's better to do more than the minimum necessary in order to meet the "diligent, good faith" standard.
Please further note that a worker should follow up with prospective employers after putting in each application. It is not typically enough to just place applications and then forget about them. For necessary self-protection, the worker should keep a detailed list of each prospective employer contacted, the specific person contacted (for instance, the hiring manager), on which dates any contacts were made, and with what results. This list will be crucial during proceedings before the Workers’ Compensation Board. Indeed, this office has developed and provides for free an easy form on which to keep track of all the necessary information. Please click on the image below (temporarily disabled while we update the form...please call our office beginning 2/15/2010 for new forms while we work on providing an update through this web page) to open and print this form from your own computer:
Remember, claimants may assume that at some point in time he/she will likely be challenged by the insurance company's lawyer to produce evidence of his/her "labor market attachment." At this time, the worker should produce his/her written and detailed list of employers contacted. A claimant may be required to produce such a work-search list at any time, covering any period of partial disability, for as long as the claimant seeks or receives Workers' Compensation benefits.
Please also note that an insurance carrier's attorney may argue that if the injured worker’s diligent search ended four months previously, or even two years previously, then the insurance carrier is entitled to a “credit” for an overpayment in the value of these time periods. This means that even if the injured worker “reattaches” to the labor market by restarting the diligent, good faith work-search the law requires, the injured worker may still not be able to collect a full benefit amount until the insurance carrier’s “credit” has been fully repaid. Thus, even if it takes years to exhaust the credit owed to the insurance carrier, the injured worker who has begun searching again may not get paid in full (or perhaps at all) for several months, or even for many years, depending on the facts.
Of course, it is very true that employers may not wish to hire an injured/sick worker with Workers' Compensation restrictions, especially severe restrictions. Prospective employers may believe that such an injured/sick worker will not be as productive as any other applicant, may miss more time from work than other prospective employees, or may even present an increased risk of litigation to the new employer. However, the New York State, Workers' Compensation Law is not as concerned with the unfortunate realities and roadblocks facing injured and sick job applicants as it is concerned with compelling injured and sick workers to at least try to get back to work. In essence, the Workers' Compensation law leaves the unfortunate reality of disability-based discrimination in hiring to such laws as this state's Human Rights Law, and to federal laws such as the Americans with Disabilities Act (or "ADA").
The Good News about the Work-Search Requirement:
Under the law, many claimants will actually be entitled to more money from the Workers’ Compensation insurance carrier if they are successful in locating work, even if that work pays far less than the work the claimant performed previous to his/her injury. Thus, the best way to ensure that you are receiving the benefits you deserve is to obtain whatever work is available and then return to the Workers’ Compensation Board with a claim for “Reduced Earnings.”
For instance, consider the case of an injured worker named Barbara. Barbara suffered a severe back strain while working for ABC Poultry & Egg, Inc.. Prior to her injury, Barbara made $650.00 per week, after her overtime hours were included, inspecting eggs for her employer. After she reached Maximum Medical Improvement ("MMI") from her back strain, a Workers’ Compensation Law Judge awarded Barbara a Permanent Partial Disability, but only of Mild severity. This decision by the law judge allowed Barbara to collect just $108.33 per week in Workers' Compensation benefits. Here, Barbara's medical restrictions were "no repetitive bending and no lifting greater than 35 pounds." Barbara was subject to the Work-Search Requirement.
Barbara followed the advice of this office and diligently searched for work using the form we provided above. In fact, Barbara found a new job within her restrictions working as a Customer Service Representative at a local retail store. Unfortunately, her starting salary was only $8.00 per hour, for 40 hours, or $320.00 per week in the new Customer Service position. Due to earning less in her new position, Barbara clearly suffered what are known as "Reduced Earnings" as a direct result of her back injury. Under New York State, Workers' Compensation Law, the insurance company for ABC Poultry and Egg, Inc. must now pay Barbara $220.00 per week in tax-free "Reduced Earnings" payments as a consequence of Barbara’s injury.
Thus, Barbara now has a different job with lower earnings, but because she found a job within her restrictions, she is rewarded by the Workers' Compensation Law with an even bigger weekly benefit than she would have earned had she not accepted the lower paying position. Also, please note that Barbara now works no overtime at all, and yet when the tax savings of her receiving Workers' Compensation benefits are fully considered, she is in approximately the same financial situation as she was prior to getting injured (when she worked more hours). Barbara also gets great satisfaction out of obtaining higher benefits while working. In this example, the insurance carrier must pay Barbara an extra $111.67 per week, or $5,806.84 per year in "Reduced Earnings."
Again, as can be understood from the above rules and Barbara's example, even "Permanently Disabled" injured or sick workers must diligently look for work within their medical restrictions. If they do, they can be saved from getting cut-off from benefits they and their families deserve. In addition, they can also often be substantially rewarded by the Workers' Compensation Law if they are successful in finding new work, even lesser-paying work. Generally, it is only those who suffer a "total" disability (whether temporary or permanent) who may avoid the Work Search Requirement under the New York State, Workers' Compensation Law. However, only the judge is truly privileged to declare what does or does not constitute a “total” disability under the particular circumstances of a claim. Thus, although injured workers are generally entitled to rely on the opinions of their doctors, this is not always the case.
For those who need a little help getting started, there are several places to look for a job online (you should also make physical contact with as many prospective employers as possible). Here are just a few places to start looking:
There are also several employment/staffing agencies where any injured worker should get their resume on-file (and call once per week):
* Manpower - (585) 227-6008
* The Employment Store - (585) 232-4880
* McCall Staffing Associates - (585) 231-1510
* Olsten Services - (585) 232-4070
* Labor Ready - (585) 254-1360
* Kelly Services - (585) 235-0230
* Kas Staffing, Inc. - (585) 544-0770
* Adecco Employment Services - (585) 546-1660
* PeopleLink Staffing Solutions - (585) 461-1170
* Apa Employment Agency, Inc. - (585) 442-2859
* LH Quality Staffing Solutions - (585) 235-5040
* Bowman Personnel, LLC - (585) 242-0427
* Lightning Fast Labor Force - (585) 546-8808
Please Contact Us immediately if you are being challenged by the Workers’ Compensation insurance carrier over your “attachment” to the labor market, or if you would like to settle your dispute through Section 32 settlement. You may also contact us if you would like more information or advise concerning the Work-Search Requirement as that may apply under the particular facts of your claim.
See What the Courts Say:
Document One
The Matter of Jean Louman v. Premier Staffing, LLC
Document Two
The Matter of David G. Katsaris v. Lockheed Martin Federal Systems
Document Three
The Matter of Gary Thompson v. Sauke Brothers Construction Company
Document Four
The Matter of Frank Scarpelli v. Bevco Trucking Corporation
If you would like help getting back to work through retraining, please contact the New York State Education Department's Vocational and Educational Services for Individuals with Disabilities ("VESID") by first looking up the appropriate regional contact information provided at the following link: Workers' Compensation Rehabilitation Programs through VESID. In addition, please download the Workers' Compensation Board's Request for Rehabilitation Services Form and submit this to the Board location nearest you. There are also useful resources available to disabled workers at the federal government's website located at: disabilityinfo.gov, although you should only spend time on that site AFTER you have complied with your state law legal duties (please get involved with VESID first, if that option is available). The reason we say this is that the courts have recognized that enrollment with VESID goes a long way toward showing a good faith effort to get back to work, and may or may not totally satisfy the work-search requirement under the Workers' Compensation Law, depending on the facts of a particular claim and the nature of the claimant's involvement with VESID. Please consult your attorney.
IF You Didn't Find What You Were Looking For:
Custom Search
Contact us today. Let us know how we can help YOU!
