Key Takeaways:

• Labor Market Attachment issues will be available on August 16, 2021

• Additionally, original signatures will be required for Workers’ Compensation Board forms on August 16, 2021

• Telehealth remains in effect pending further guidance and Board locations remain closed for attendance other than virtual

On March 7, 2020, Gov. Andrew Cuomo announced 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, it 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 the header of COVID-19 updates (see June 2021 guidance).

For some of the guidance issues, the Board offered an additional period of transition with a date of August 16, 2021 as a timeline for entertainment of the issue.

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 is out of work secondary to the work injury based on his medical restrictions.

The Board will permit the carrier to raise the issue beginning 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.

Here are some recommendations to be prepared for the August 16, 2021 date:

1. Identify claims that are impacted by the issue of Labor Market Attachment defense. This includes claims marked no further action based on the issue of Labor Market Attachment and COVID-19 restrictions (i.e., cases on the permanency calendar for claimant testimony, cases where there were prior findings in a Notice of Decision directing claimant to submit evidence of job searches). Further, this should include all claims where you are not under a Board direction to make indemnity payments and the medical evidence supports that the claimant is only partially disabled from any and all employment.
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 Board with the WCB#. Attach the form C-258, as well as the link to ACCESS-VR services.
3. Send the document by certified mail to the address for the 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 Workers’ Compensation 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.

Under New York State Workers’ Compensation Law, a claimant must be considered partially disabled in order for the issue of labor market attachment to be raised. It is critical to raise the issue of Labor Market Attachment when a claimant is providing testimony on loss of wage earning for classification of a permanent partial disability. By having the documentation in place, you will have a greater success in achieving a favorable result by the Workers’ Compensation Law Judge.

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:

• Christina M. Hassler
• Damon M. Gruber
• Sean J. McKinley
• Esther F. Omoloyin
• Or another member of our Workers’ Compensation practice