In New York State, the minimum requirements for the labor market attachment provide a truly low hurdle for a claimant to jump over. Rather than actually attempt to find gainful employment, a claimant usually needs to simply go through the motions: go to a one-stop career center a few times, apply to a handful of jobs each week online, or otherwise spend less than an hour each week trying to find work. So long as there is at least a colorable attempt to find work, most Law Judges are reluctant to suspend benefits. In addition, litigating labor market attachment incurs litigation expenses, with the potential for no direct benefit to the carrier. With this in mind, I would like to share a handful of situations where labor market attachment can be a carrier’s best friend.
The first scenario is where settlement is a possibility but the claimant is being unreasonable. Raising labor market attachment has a twofold effect on settlement negotiations. First, it pushes the claimant to take some action in order to receive ongoing benefits. Although the burden is minimal, some claimant’s find it irritating to look for work and attend hearings, and this slight irritation is enough to leverage settlement. Second, it gives the carrier an opportunity to suspend benefits. Even if a claimant is deemed attached, the carrier can file an appeal. The claimant then knows that it may be up to a year before the board panel reinstates benefits, and may therefore agree to a reasonable settlement sum.
The second scenario is where a claimant with a forthcoming schedule loss of use is malingering or delaying surgery. Generally, it is not beneficial to push labor market attachment if the claimant will be paid benefits in a schedule loss of use. However, if a carrier anticipates that disability benefits will exceed the eventual schedule loss of use within half a year, that is an ideal time to raise labor market attachment. Just as in a claim involving possible settlement, the claimant may decide to stop malingering and push for a lump sum schedule. Alternatively, the carrier is given a chance to suspend awards and prevent a possible overpayment on the schedule. If a claimant is unreasonably delaying surgery, he or she may then choose to have the surgery to avoid the burden of attachment.
Finally, labor market attachment is an excellent tool to decrease a claimant’s loss of wage earning capacity at the time of classification. If raised a few months before the classification hearing, claimants generally provide a job search log detailing at least a few dozen applications. If it is clear that the Judge is going to find the claimant attached, the carrier needs simply to ask the claimant whether he believes he can do the work required by those jobs. Once the claimant says yes, the carrier now has at least a few dozen examples of jobs that the claimant can do. The carrier now has evidence of a significant wage earning capacity, provided directly by the claimant himself.