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Voluntary Withdrawal from the Labor Market

Wednesday, September 15, 2010 | 1105 | 0 | min read

By Michael T. Berns

One issue that has remained a major source of controversy is that of voluntary withdrawal from the labor market. Five of the 26 Full Board Reviews published by the New York Stte Workers' Compensation Board this year deal with this issue as did nine decisions issued by the New York State Appellate Court, Third Department in 2009 and 2010, all 14 of which are referenced below.

The record in these cases shows that both the court and the board have split their decisions with about half supporting the claimant and half affirming the carrier’s position as to whether or not the claimant is attached to the labor market.

In a recent discussion I had with a claimant advocate, I was castigated for pretending to be neutral when he alleged that I was one of the leaders who used the concept of voluntary withdrawal from the labor market to deny injured workers their due compensation. An analysis from 2010’s Full Board Reviews (selected by the board using some unknown criteria) and the Appellate Court’s ruling in 2010 and 2009 show that even the current Board, now mostly Democrat and pro-union Gov. Paterson appointees, agrees that there are some claimants who just are trying to collect compensation in addition to their Social Security (disability or pension) and/or their regular retirement pensions.

<b>Who First Raised The Issue</b>

Actually, this issue was raised in about 1997 or 1998 by Vice Chairman Jeffrey Sweet, who expressed his displeasure at those injured workers who had gone back to work after their injury, but then, on approaching retirement age, suddenly claimed that their non-disabling disability had gotten worse or they were now permanently disabled and no longer able to work. Sweet felt that in some of these cases this was a strategy to collect tax-free workers compensation in addition to their pension. After a number of informal discussions, the Pataki-appointed commissioners started looking into this issue and began denying compensation where appropriate.

In some cases, there were claimants who had retired with partial disabilities, moved to Florida, and left the job market. Then a few years later their condition deteriorated and they sought a reopening of their case to get classified with a permanent total disability and to collect compensation because they could not reenter the job market. These claims for additional compensation were ultimately rejected on the basis that the claimant had not realistically sought to renter the job market for many years, until just before they sought to reopen their case.

I do remember one claimant attorney who told me that, since a number of his claimants were veterans, he would send them to the Veterans Administration to find jobs and, when they could not, he would come back to get them compensation. My response was, “But that is what they are supposed to do!” They are, by the board’s standards, supposed to really look for work. And if they cannot find it because their disability restricts their job prospects, they will get their compensation, as did many of the claimants whose cases are listed in this commentary.

<b>How To Win/Lose a Case</b>

The record is clear that any claimant who follows the basic guidelines noted below will most likely qualify for compensation and not lose on the basis of voluntary withdrawal from the market place.

 The claimant should first make sure that his doctor lists in as much detail as possible his restrictions in terms of standing, lifting, twisting, turning, walking, etc. and make specific mention as to whether or not such restrictions prevent the claimant on a permanent or temporary basis from returning to the employment they had prior to their injury.
  The claimant should keep a detailed list of all firms they contact: name of firm, date of contact, contact person, job sought, how they got that firm’s name, why they did not get the job. If they are getting any training or attending school, details on this should also be included.
 Their prior work history should be included as this will often demonstrate limited skills and experience. Many times these claimants will qualify as industrially disabled, making it far more like that their inability reenter the job market is causally related.

The issue of industrial disability is also a key factor, one in which prior work history is relevant. I know a claimant in his mid 30s, who never went to college and has worked as a waiter or bartender until the time of their injury. He had never worked in an office or done anything with paperwork. He has just written down orders and, if for food, given them to the kitchen and, if drinks, made the drinks and delivered both to the customers’ tables. Due to a back and neck injury, he can not stand for more than 20-30 minutes at a time and has limited mobility and minimal strength in one arm. Based on his work history, he has limited job prospects until he finishes some courses to allow him to do office/clerical work.

(Of course, this deals with the issue of functional disability as well and that will be the subject of another commentary but, in this case, this claimant’s search for work may not be as successful as an experienced office/clerical worker with the same injuries.)

<b>Case Summaries: 2009 & 2010</b>

Injured workers must understand that, in most cases, none of the following conditions automatically qualify them for workers compensation:

  • Retiring from one job and getting a disability pension. (Smith v Consolidated Edison Dec. 10, 2009 Appellate Division, Third Department)
  • Qualifying for Social Security disability (Garifo v Pathmark Stores March 4, 2010 NYS Appellate Division, Third Department)
  • Retiring to Florida and not working for years, then upon suffering from an increase in disability, seeking compensation for inability to reenter the job market. (Magerko v Edwin B. Stimpson Co. Nov. 25, 2009 Appellate Division, Third Department)

What will disqualify them is:
  • Refusing to take a light duty job (Porter v Triboro Bridge Nov. 12, 2009 Appellate Division, Third Department)
  • Having other substantive medical problems (Parrelli v Atlantic Constr Nov. 25, 2009 Appellate Division, Third Department) although the burden of proof is on the employer (Mistofsky v Consolidated Edison Dec. 10, 2009 Appellate Division, Third Department and Burns v Town of Colonie Oct. 1, 2009 Appellate Division, Third Department)
  •  Losing their job because of misconduct rather than their disability and then not making a serious search for work. (Cicinnati v Clare Rose, Inc March 11, 2010 NYS Appellate Division, Third Department)
  • Working full time without restrictions up until the day they retire, retiring solely to preserve health care benefits. (City of Rochester WCB 704110419 Filed July 8, 2010)
  • Getting laid off, even with a disability, but not making a real effort to find work. (St. Francis Construction Corp. WCB 30705539 Filed July 8, 2010)
In summary, despite whatever limitations the claimant may have, how diligent he seeks a new job and documents that search, will determine whether they qualify for awards (American Axle WCB 80303659 Filed Feb. 4, 2010; Silipos, Inc. WCB 80801128, filed April 13, 2010; 420 E. 86th St./Carlton Mgmt WCB 00253104 Filed March 23, 2010; and ITT Industries, Inc. WCB 79712417 Filed May 6, 2010).

<b>How to Resolve this Issue</b>

Hopefully, if attorneys for both injured works and the carriers pay attention to these points, some of the more egregious cases (probably 20% by carriers and 20% by claimants) will not be controverted, thus allowing the board to use its resources on those cases that make up the “mushy” middle, where the issues are not at all clear.

Were I the chairman of the bBoard, I would invite one attorney for each side as well as a union representative, an employer representative, one commissioner, and one law judge to an open forum to discuss this issue before an audience made up of members of the workers' compensation community, including law judges, commissioners, and writers for the commissioners. After all, is it not the goal of the Workers' Compensation Board to not only administer and, in effect, arbitrate disputes, but to take steps to minimize the need for the parties to have to litigate in the first place.

Of course, there are other key indicia not noted here, as many were not touched upon in these 13 cases. And I am sure that every practitioner and advocate for each side has their own perspectives. Until a forum takes place (certainly not during the current administration), such perspectives are not only welcome by me but sought and will be published in the next posting on this website.

<i>Michael T. Berns is a former commissioner on the New York State Workers' Compensation Board. This column was reprinted with his permission from his blog, http://www.insideworkerscompny.com/</i>


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