Using the Labor Market Attachment Defense to Your Advantage During a LWEC Trial

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Under Workers’ Compensation Law Section 15(3), if a claimant has a permanent impairment to a non-schedule site, then the claimant is compensated for his or her actual loss of wage earning capacity (LWEC) caused by the disability. This stage in workers’ compensation litigation is known as classification. During the LWEC trial, the law judge not only considers a claimant’s permanent medical impairment but also vocational factors such as age, education, language ability, work history, and transferrable skills that may mitigate or aggravate the percentage of loss of wage earning capacity calculated. Thus, affecting the amount and length of time that benefits are awarded.

When at this stage, many claimants present themselves as having a limited education, language barrier, limited work experience, and a non-transferrable skill set. The goal in this situation is to get the highest LWEC determination possible. Oftentimes, the carrier has little-to-no information on vocational factors. While claimants are required to file a Vocational Data Form (VDF) prior to an LWEC trial, many times it is incomplete or produced minutes before trial.

Nonetheless, if the carrier has successfully raised and taken labor market attachment testimony in the past, then suddenly a wealth of information is at your disposal. When a claimant has been found to be partially disabled, he or she has a continued obligation to demonstrate labor market attachment. A claimant is considered to be attached if he or she is making reasonable efforts to obtain employment within medical restrictions and submits documented evidence such as a work search. The carrier has the right to challenge whether the claimant’s efforts are reasonable and adequate through labor market attachment testimony. If the law judge finds a claimant’s efforts inadequate, then the carrier can suspend ongoing benefits. Contrary to the LWEC trial, here claimants approach the testimony as a job interview. They are educated, marketable, and computer literate, because of the interest to retain ongoing benefits.

So how can you use labor market testimony to obtain a better outcome at the LWEC trial? First, scrutinize a claimant’s documented work search. One of the factors a law judge considers during attachment testimony is if the claimant submitted a good faith effort. A claimant has to attest that he or she can do the kind of work being sought. Many times a claimant presents copies of job applications submitted through online job search engines like Indeed or ZipRecruiter along with the post itself. This information can be revealing of a claimant’s work capacity and ability. As an example, during an attachment trial, a claimant who’s pre-injury job was a food server applied for dozens of jobs as a security guard. When asked if he’s capable of doing that work, the claimant explained he was a security guard in the past and presented with the appropriate certifications. Thinking ahead for LWEC trial, we now know that he has work experience outside of the food industry and the appropriate credentials.

Next, look for a resume. Claimants often file a resume alongside their documented work search. During a recent LWEC trial, a claimant who was a room attendant at a hotel for the last 10 years submitted a resume revealing she had a prior career as a bookkeeper in her home country of China. Coincidently, that information was missing from her VDF form. Nonetheless, by searching for the resume produced during prior attachment testimony, the claimant was questioned extensively during the LWEC trial regarding her background in accounting and bookkeeping.

At the conclusion of the trial, the law judge considered her accounting background a mitigating factor in the LWEC determination as the claimant possessed professional skills that did not bar her from attaining employment in her own Chinese speaking community (the claimant testified that she knew very little English). The law judge made a finding of a 40 percent LWEC that is less than half of what the claimant’s counsel was asking for at 85 percent. This was the difference between paying the claimant for a little over five years compared to close to nine years.

Lastly, analyze how a claimant described how he or she conducted their job search. During a LWEC trial, many claimants deny being computer literate or tech savvy.  For example, the same food server noted above may testify to knowing how to use a smartphone but deny knowing how to operate a computer. However, during his attachment trial, he produced hundreds of online applications, which demonstrate he is able to browse the internet, do a search, type coherent sentences and respond to employers by email. This therefore highlights that he is computer literate.

As carriers, we want to be mindful of claimants’ interests at different stages of the litigation and keep track of what they stand to gain. Having that mindset and noticing inconsistent behavior will help us work towards our long-term goal, which is to reduce exposure whenever possible.