Raising Self-Limitation on Reduced Earnings: A New Approach

How many times has your attorney heard this whispered after raising labor market attachment:  “Just go get any job out there and they’ll pay you the difference – any job will do.” If you work two hours a week, you’re attached and owed reduced earnings. This scenario came up during a recent litigation on the issue of labor market attachment and entitlement to awards. In that case, the claimant’s attorney maintained that the claimant was “working for someone he met online,” taking care of their home while they were away for the winter. The job consisted of cleaning the garage, checking the sump-pump and the water pipes, maintaining the oil heaters, and whatever light maintenance was necessary. The job consisted of two to four hours per week for $10 per hour.

While the New York Workers’ Compensation Board is often charitable in finding claimants working minimal, part-time jobs to be attached to the labor market, carriers have the argument of “self-limitation” of reduced earnings.

Experience told me I had to make the argument but had very little hope. How often have we been chastised for questioning the claimant’s job search efforts? Self-limiting was something we all knew existed but had very little hope of getting to the litigation phase without proof of a rejected bona-fide job offer. Eastern Suffolk Boces 2018 WL 3434809 (N.Y.Work.Comp.Bd.) provides an outline.

In Eastern Suffolk Boces, the claimant was advised she had to look for work; she took the advice of her counsel and signed up for 1.5 hours per day, making $10per hour from Care.com. The employer questioned it, noting her doctors restricted her to four to six hours per day and the need to take breaks every two hours. Predictably, the judge found no voluntary restriction. The judge made the “she found a job, therefore she was attached” decision, and issued reduced earnings awards.

The carrier appealed and the board’s decision was very instructive. On the issues of labor market attachment, the board wrote:

“The Board Panel finds that working 7.5 hours per week, earning approximately $6.67 per hour ($50/7.5) is so nominal, that it fails to demonstrate a sufficient reattachment to the labor market. Furthermore, the claimant testified that she has not searched for other employment since commencing this work. Finally, the claimant testified that she only sought employment through one on-line website and failed to provide confirmations emails, reference numbers, or document the dates she made the online applications, or the positions applied for. The Board Panel finds that the claimant’s minimal independent job search efforts were inadequate to establish an attachment to the labor market.”

On reduced earnings, the board wrote:

“In this case, the Board Panel finds that the reduction in the claimant’s earning capacity is unrelated to the claimant’s disability. The claimant’s physician, Dr. Cappellino, indicated that the claimant could work 4 to 6 hours per day. The claimant accepted a job which requires only 1.5 hours per day. Additionally, the claimant accepted less than minimum wage for this work. Finally, the claimant has not searched for other employment since commencing this work. Given these facts, the Board Panel concludes that the claimant’s reduction in earning capacity is not related to her disability, but to her choice to accept this nominal employment.

The board again ruled that the claimant’s acceptance of a 1.5 hour a day job when she was released to work four to six was further evidence of the fact that her loss in earnings was not due to her physical condition, but due to her own choice. They also held, just as they addressed in the attachment portion, that the claimant stopped looking for work after taking this nominal job and her reduction in earnings is not causally related.

The takeaway points from this decision are:

  1. The argument that the “claimant is working, therefore the job search was good enough,” can be challenged.
  2. The job search must tie to the work-restrictions as they are documented. Independent Medical Exam cover letters should be tailored to elicit the most specific restrictions possible.
  3. We can and should pressure the claimant to keep looking for work if the job obtained is less than their current restrictions.

What is almost as surprising as the board’s apparent turnaround on this issue is the fact that it appears to have trickled down to the hearing level. Practitioners have recently had great success in citing this case to get either a finding of suspension or a reduction to the partial rate (which was significantly less than the reduced earnings rate).

Practitioners should keep this case on their desktop, ready to share and cite when necessary. Using this case, the claimant in our file was found to be unattached and have no claim to reduced earnings. The judge based his findings on a lack of sufficient searches before and after accepting the nominal work.

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