Maintaining "an attachment to the labor market" for the purposes of eligibility for workers’ compensation benefits

Maintaining "an attachment to the labor market" for the purposes of eligibility for workers’ compensation benefits

Cruz v Buffalo Bd. of Educ., 2016 NY Slip Op 03034, Appellate Division, Third Department

The New York State Workers’ Compensation Board requires that a claimant for benefits have “an attachment to the labor market” if he or she is seeking to receive partial disability benefits when he or she cannot perform the normal duties of his or her position but is able to perform other types of work.*

Such a claimant can maintain “an attachment to the labor market” by [1] making a diligent search for employment that he or she can perform notwithstanding the disability, [2] being employed in a position that is within his or her medical limitations such as working part-time or performing “light-duty” work or [3] self-employment. The entity paying the benefits may require the claimant to maintain appropriate records to demonstrate his or her “attachment to the labor market.”

The claim for workers’ compensation benefits filed by Edelmiro Cruz illustrates the application of the attachment to the labor market requirement.

Cruz, an assistant principal at a Buffalo City School District elementary school, suffered work-related injuries in May 2011 and was awarded workers' compensation benefits until he returned to work in August 2011. Cruz was terminated in February 2012 and subsequently applied for additional causally related lost earnings. The Buffalo City School District, a self-insured employer and its third-party administrator [Buffalo] controverted Cruz’s claim and raised the issue of his attachment to the labor market.Buffalo also alleged Cruz had made misrepresentations regarding his search for work.

A Workers' Compensation Law Judge denied benefits, finding that, due to a lack of a sufficient effort to find work, Cruz had voluntarily removed himself from the labor market. In addition, the Law Judge found that Cruz had made misrepresentations concerning his search for work and thus had violated Workers' Compensation Law §114-a. Cruz was disqualified from receiving further benefits.**

The Workers' Compensation Board, however, concluded that Buffalo had not submitted sufficient evidence to prove that Cruz had violated §114-a. Further, while the Board affirmed the Law Judge's determination that Cruz had voluntarily removed himself from the labor market following his termination, the Board also found that Cruz “had reattached to the labor market in February 2013.”

The Board restored the case to the calendar to address the issue of Cruz's reduced earnings subsequent to February 2013 and Buffalo appealed.

The Appellate Division affirmed the Board’s action explaining that "A claimant must demonstrate attachment to the labor market with evidence of a search for employment consistent with his or her medical restrictions" and the Board's determination as to whether a claimant has demonstrated an attachment to the labor market will be sustained if supported by substantial evidence.

In this instance medical evidence in the record indicated that Cruz, as a result of his injuries, could only sit or stand for no more than two hours a day and he could not lift more than 20 pounds. In addition Cruz had testified that [1] he began using the services of the Office of Vocational and Educational Services for Individuals with Disabilities [VESID] in January 2013; [2] he had obtained a part-time job at an auto parts store in February 2013, (and was working five hours a week at the time of his testimony); [3] he was training for a management position that offered more hours, and the store was willing to accommodate his "restrictions;" and [4] he was still searching for other work with a VESID job counselor.

Based upon the foregoing, said the court, the Board's decision that claimant had reattached to the labor market as of February 2013 is supported by substantial evidence.

Addressing Buffalo’s contention that Cruz made “a material misrepresentation in violation of Workers' Compensation Law §114-a,” the Appellate Division again said that the Board's determination with respect to this issue will not be disturbed if supported by substantial evidence.

Buffalo had relied on the report and testimony of a vocation counselor. The counselor testified that she had contacted 34 companies by telephone with which Cruz reported that he had filed an application for employment between February 2012 and February 2013. Although the counselor confirmed that two of the companies had received an application from Cruz, she also testified that 17 companies either did not respond or could not verify whether or not they had received an application and the counselor conceded that Cruz could have applied for employment with them.

Further, the Board noted that the counselor did not report the name of the individuals she had spoken with and concluded that, although Cruz had not presented sufficient evidence to establish that he had remained attached to the labor market during the period in question, there was a lack of credible evidence that he had knowingly made a false statement or misrepresented a material fact in order to obtain benefits.

As "the Board is vested with the discretion to evaluate witness credibility and to weigh conflicting evidence," the Appellate Division ruled that Board's decision that Buffalo had not met it burden of proof with respect to its allegation that Cruz’s violated §114-a of the Workers' Compensation Law was supported by substantial evidence.

* A claimant for workers’ compensation benefits temporarily totally disabled is deemed unable to perform any work and is not required to maintain “an attachment to that labor market” while so temporarily totally disabled. An individual found permanently totally disabled is not required to maintain an attachment to the labor market in any event.

** Workers' Compensation Law §114-a provides for the disqualification of an individual for worker’s compensation benefits in the event he or she has made a false statement or representation in applying for such benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03034.htm