Is the Labor Market Attachment Forever Over?
As of 2017, a claimant with a permanent partial disability (PPD) who is entitled to awards when they are classified does not have to demonstrate ongoing labor market attachment (LMA). The mentality since the change in 2017 has been that if a claimant is entitled at classification then there is no way to bring up LMA in the future.
Prior to the 2017 reform, from December 23, 2010 through February 1, 2012, the Third Department Decision in the matter of Zamora (12/23/10), controlled labor market attachment. Zamora held that when a claimant is classified and not working there is a rebuttable presumption that the claimant’s PPD caused or contributed to their removal from the labor market and any loss of earnings after that are related to the claimant’s PPD. This effectively prevented employers and insurers from pursuing LMA without “proof” that someone voluntarily separated from the labor market.
Per this first Zamora decision, to rebut the presumption “the employer must show ‘that the failure to seek employment was the sole cause of the subsequent reduction.’” This meant that a claimant was “entitled to compensation benefits until the inference is removed with the employer or carrier’s submission of direct and positive proof that something other than the disability was the sole cause of the claimant’s reduced earning capacity.” James Field, WCB # 50016798 (08/31/11). Zamora also found that “a claimant’s failure to look for work may be relevant in challenging a claimant’s continued right to benefits in these situations, but is not enough on its own.”
However, the court did leave some room in Hester v. Homemakers Upstate (03/24/11) a decision from the following year. There, “claimant admitted that she had not looked for work since her injury and did not plan on doing so in the future. Substantial evidence thus supports the Board’s determination that she had voluntarily withdrawn from the labor market.” Admittedly, this decision was without reference to Zamora, but the court found that admission that the claimant had not looked for work and was not planning to was sufficient to constitute a voluntary separation from the labor market.
In Board Panel decisions which later discussed both Zamora and Hester, the Board noted that certain communications could raise a question sufficient to beat the presumption. “These communications include, but are not limited to, an employer’s offer of light duty work within the claimant’s medical restrictions, or an offer of retraining or job search assistance by a firm in the business of providing such services. An unemployed claimant’s failure to respond to such offers, or an unexplained rejection of such offers, raises an issue of fact that something other than the claimant’s disability may be the reason for the continued loss of wages. Likewise, evidence of claimant’s retirement, leaving a light duty job, or a change in the claimant’s condition may also raise a triable issue of fact sufficient to reopen the case.” Thomas & Betts WCB # 90305574 (9/15/11).
Granted, all of this was overturned by the Court of Appeals and then the 2017 change in the law further made it moot. However, it is informative of how the courts may react to a challenge on LMA for a classified claimant who was previously entitled to awards.
In Woodland Leasing Co. WCB # 80703634 (04/24/18), the Board found as in prior precedent under Zamora and Hester that demonstrating ongoing LMA is different from a voluntary withdrawal from the labor market and this claimant, who was incarcerated on a felony, was found to have voluntarily withdrawn with no subsequent reattachment. In most cases like this, the Board has rejected similar arguments. As factually appropriate cases come along with strong grounds for a finding of voluntary separation, an appeal may be fruitful. Some potential circumstances could include, refusal of light duty, a claimant on reduced earnings leaving their job for unrelated reasons, an admission on the record that they do not plan to re-attach, voluntary retirement unrelated to the injury, or evidence of a significant change in condition or restrictions. This will likely take a decision from the Third Department or Court of Appeals to become an effective strategy and it will take the right case.