NYS Workers’ Compensation Board Responds to End of COVID-19 State of Emergency and Prepares for Labor Market Attachment
Knowledge

NYS Workers’ Compensation Board Responds to End of COVID-19 State of Emergency and Prepares for Labor Market Attachment

Key Takeaways

  • The Workers’ Compensation Board references that claimants be guided by Workforce 1, which is a New York City equivalent of ACCESS-VR

  • A judge will be able to consider special circumstances for the particular claimant, as well as statewide COVID-19 rates and mobility issues

  • The Labor Market Attachment is an available defense for the employer/carrier when a claimant is deemed partially disabled from any and all work

 

On March 7, 2020, Gov. Andrew Cuomo used his executive powers to announce Executive Order 202, placing New York under a State of Emergency based on the COVID-19 pandemic. The order was extended and was scheduled to expire on July 5, 2021. However, based on vaccination and statistical rates, the governor lifted the State of Emergency for New York on June 24, 2021.

The New York Workers’ Compensation Board provided guidance during this period of time (March 7, 2020 forward) on COVID-19 procedures. On June 29, 2021, they issued notification of certain changes in light of the declaration of the end of the State of Emergency. These are provided on the New York State Workers’ Compensation Board website under COVID-19 updates.

A further update was sent by the Board on August 13, 2021 providing additional details on the issue of Labor Market Attachment. The Board specifically referenced Workforce 1, a job placement agency generally located in the New York City area.

WHAT YOU NEED TO KNOW

The Labor Market Attachment is an available defense for the employer/carrier when a claimant is deemed partially disabled from any and all work. Workers’ compensation benefits are considered wage replacement benefits, meaning that a claimant is only entitled to indemnity benefits if he or she is out of work secondary to the work injury based on medical restrictions.

The workers’ compensation benefits permitted the carrier to raise the issue beginning on August 16, 2021. This is generally similar to the argument that an RFA-2 is required to put a claimant on notice before adjudication of an issue occurs. This doesn’t mean that the employer and carrier cannot begin to put their defense in place. Additionally, the websites for ACCESS-VR and similar locations across the state are offering job placement appointments, applications, and lists of job openings at this time.

RECOMMENDATIONS

  1. Identify the proper claims, especially those previously marked no further action pending COVID-19 restrictions to address Labor Market Attachment. Any claim involving a direction for continued payments at a temporary partial rate would also be considered, along with current claims pending testimony on loss of wage earning capacity.
  2. For the claims that meet the standard above, send out job search requests with a date certain for return of the document. These requests should be sent to the claimant, copying his/her attorney if applicable, as well as the New York State Workers’ Compensation Board with the WCB#. See form C-258 and ACCESS-VR services.
  3. Send the document by certified mail to the address for claimant listed as current in the electronic case folder for your claim.
  4. Set a diary for the date certain return of the document, consider sending a second request, and file the RFA-2 form (if you are under a direction to make indemnity payments by the Board) requesting a hearing and citing the board document identification number which contains your evidence of requests to the claimant. If there is no direction for indemnity payments, contact us to determine your ongoing obligation to make payments.

Success in achieving a defense requires planning, preparation, and presentation. Please feel free to contact us to ensure that you are making the best efforts to achieve a favorable legal result.

If you have any questions about these changes or how they impact your business, please contact: