The incarceration of a claimant receiving workers’ compensation benefits can be used as a defense to payment of indemnity benefits based on two similar, but distinct, arguments.
In general, where the carrier has been directed to pay workers compensation indemnity benefits by the New York Workers’ Compensation Board, the carrier may only suspend indemnity benefits unilaterally (without a new direction from the board) in certain circumstances. Per 12 NYCRR Section 300.23(b)(3)(iv), the carrier is allowed to suspend with proof of the claimant’s incarceration upon conviction of a felony. This proof has been traditionally interpreted to be the certificate of conviction.
The above situation is the default incarceration situation which may inform a judge’s conception of the relation of the claimant’s incarceration to the claimant’s right to ongoing indemnity benefits. However, the above scenario is not the only situation in which the claimant’s incarceration can be used as a defense to payment of ongoing indemnity benefits. The claimant’s incarceration can be viewed as a removal from the labor market unrelated to the established work injury or condition. Just like a voluntary removal from the labor market due to a retirement that the claimant was planning on regardless of the established work injury or a removal from the labor market such as a hospitalization for an unrelated injury or condition, the claimant’s incarceration can be raised as a voluntary removal from the labor market where the claimant would be required to establish reattachment to the labor market before being entitled to ongoing awards.
If the claimant’s incarceration is being raised as a defense to ongoing benefits without the certificate of conviction for a felony, benefits should not be unilaterally suspended. Rather an RFA-2 should be filed requesting suspension of benefits based on the claimant’s incarceration. At the hearing, the argument should be made to the Judge that whether or not the certificate of felony conviction has been produced, unless the claimant is disputing the fact that he or she has been incarcerated, benefits should be suspended based on the voluntary removal from the labor market.
Keep in mind that judges will need to be reminded that the certificate of felony conviction is only required where the carrier is unilaterally suspending benefits based on incarceration. Here, the carrier is simply raising the incarceration as the basis for voluntary removal and a defense to ongoing benefits until reattachment is established.