The Attachment to the Labor Market Defense for PPD Claimants After the 2017 Reforms
Although the April 2017 amendment to the Workers’ Compensation Law has eliminated the need for some permanently partially disabled (PPD) claimants to demonstrate ongoing attachment the labor market, we submit that this does not mean that carriers are without means to seek a suspension of benefits following classification. Recall that WCL Section 15(3)(w) was amended to read, in pertinent part, as follows:
Compensation under this paragraph shall be payable during a continuance of such permanent partial disability, without the necessity for the claimant who is entitled to benefits at the time of classification to demonstrate ongoing attachment to the labor market
The curious situation created by this amendment is that although the claimant still must maintain an attachment to the labor market following classification with a permanent partial disability, the claimant no longer needs to prove it. Although the claimant’s burden to demonstrate attachment has been lifted, this does not prevent the carrier from arguing that the claimant has voluntarily withdrawn from the labor market.
Before the 2017 amendment to Section 15(3)(w), the Board repeatedly stated in its decisions addressing requests to reopen claims post-classification that “attachment to the labor market and voluntary withdrawal from the labor market are two different legal concepts,” Combined Life Insurance Co., WCB Case No. 806012674 (decided 4/9/15). Attachment to the labor market is an ongoing issue, which the claimant must continually maintain and prove to be entitled to benefits. Voluntary withdrawal from the labor market applies to a specific point in time and must be proven by substantial evidence. Curtis v. Dale Pipery Corp., 295 A.D.2d 836 (3d Dep’t 2002). For example, if a claimant quits employment for reasons unrelated to the injury or refuses a light-duty job offer within that claimant’s work restrictions made in good faith, that claimant has voluntarily withdrawn from the labor market, and must prove attachment thereafter to maintain an entitlement to benefits. Moreover, if a claimant does not look for work, or otherwise fails to maintain an attachment to the labor market, that claimant can be found voluntarily withdrawn from the labor market. German v. Target Corp. 77 A.D.3d 1126 (3d Dept. 2010); see also, Buffalo Bd. Of Education, 2013 WL 1007427 (WCB Case No. 80208789, decided March 6, 2013).
The amendment to Section 15(3)(w) makes no reference to the voluntary withdrawal defense. This defense should still be available to carriers even after classification. A condition precedent to a finding of voluntary withdrawal is a prior attachment to the labor market. If the carrier can submit sufficient evidence that the claimant is no longer engaged in the activity that gave rise to the claimant’s earlier attachment to the labor market (e.g., the claimant is no longer employed, or going to school, or retraining, or looking for work) then the carrier could argue that the claimant had voluntarily withdrawn from the labor market.
We submit therefore that carriers should: (1) pursue the attachment to the labor market defense vigorously before and at the time of classification and (2) argue for a finding of voluntary withdrawal from the labor market after classification if the carrier can show that the claimant ceased those activities which previously proved the claimant’s attachment to the labor market at the time of classification.
We believe that the proof required to argue this will be like that required by numerous Board Panel decisions concerning the reopening of a claim following classification with a PPD. Such proof typically consisted of copies of questionnaires sent to the claimant asking if the claimant was looking for work, offers of vocational services, job leads sent to the claimant, and the results of follow up on those leads. Similar evidence used in reopening those claims will prove useful in pursuing the voluntary withdrawal defense following the 2017 amendment to Section 15(3)(w).
If you have any questions or need assistance concerning defense of a post-PPD claim, please do not hesitate to contact any one of our attorneys.