WORKERS COMPENSATION LAW UPDATE (September 2011)

The NYS Senate and Assembly are currently debating a Bill that would exempt claimants with injuries before December 1, 2010 from the onerous Medical Treatment Guidelines implemented by the Board.

The Bill is labeled A.6294 (Wright) in the Assembly and S.3741 (Maziarz) in the Senate. If approved, the Board would be unable to retroactively apply the Medical Treatment Guidelines to cases that arose before the enactment by the Board. This would allow claimants with long standing claims to once again treat with their chiropractors, physical therapists, massage therapists, family physicians and pain treatment physicians to obtain the treatment they need for their chronic injuries which have effectively been eliminated with the Medical Treatment Guidelines.

Please call your local Assemblyman and State Senator and tell them that you want them to support the Bill for passage.

WORKERS COMPENSATION
HOT TOPIC – VOLUNTARY WITHDRAWAL FROM THE LABOR MARKET

Of recent vintage, Workers’ Compensation carriers have created a new defense to paying Workers’ Compensation claimants.  This defense is called voluntary withdrawal from the labor market.  In essence, the carrier has successfully raised, and the Workers’ Compensation Board has accepted the notion, that a partially disabled claimant, whether temporarily or permanent disabled, has the capacity to look for work within their restrictions and limitations.  Failure to do so will result in the suspension of benefits to the claimant for failure to comply with this requirement.  While there is no specific language addressing this issue in the Workers’ Compensation Law, carriers have successfully argued this issue before the Workers’ Compensation Board, Workers’ Compensation Appeals Bureau and through the New York State Courts. 

 As a result, an individual with a partial disability MUST look for work within their restrictions and limitations.  Thus far, this requirement appears to have been met by engaging in a good faith effort to look for work.  This can be accomplished by searching for work at approximately 5 -7 places per week, keeping track of the name of the company contacted, the contact person’s name, the date of the contact, the outcome of that contact and the source of the contact.  The best sources for obtaining prospective employment include, but are not limited to, the help-wanted ads in the local newspapers, internet job sites i.e., WNYJobs.com, Monster.com, etc. and the local unemployment office.  Registration and participation through the local unemployment office and temporary employment agencies is also encouraged, especially the One Source Career program through the Labor Department.  A claimant must only search for work at places actually hiring.  A good idea is to register and participate with One Source Career Centers at your local unemployment office.

In the alternative, participation in a rehabilitation program such as VESID (through the Workers’ Compensation Board) or another rehabilitation program also demonstrates attachment to the Labor Market.  VESID can be reached directly through the Workers’ Compensation Board for individuals with disabilities.  This program attempts to identify an individual’s strengths and weaknesses in order to determine the viability of retraining into a different field for employment.  VESID often assists with the initial assessment process, job search process and the actual retraining of an individual,  including schooling. Participation involves contacting VESID, attending a group orientation session, being assigned a counselor and either attending school, retraining program or diligently searching for work within the identified capabilities.

If a partially disabled individual is unable to search for work due to a combination of “other impairments” exclusive of the compensation injuries, he or she may be exempt from this requirement.  The individual could be found totally disabled from employment or unemployable due to a combination of ailments.  Documented medical records of these other ailments and a medical opinion are often necessary to defeat the presumption that one has the ability to look for work.