N.Y. Workers’ Comp. and Labor Market Attachment
July 2, 2008 11:49 am NY Laws and Cases, NY Workers CompensationIf you're new here, you may want to subscribe to my RSS feed. Thanks for visiting!
Under New York Workers’ Comp. Law, a totally disabled claimant has no obligation to seek employment. However, a partially disabled claimant has an obligation to make a reasonable search for work of any kind within his or her work capacity.
The insurance carrier may request that you produce evidence of your job search. If you cannot produce sufficient evidence of a diligent job search, the insurance company may be allowed to suspend your weekly payments.
There was a time when insurance companies didn’t push the labor market attachment issue; however, that time is over. These days insurance companies routinely ask claimants to submit detailed accounts of their job searches. If the claimant is unable to produce satisfactory documentation, Workers’ Comp. Law Judges routinely suspend benefits.
We advise our clients who have gone from totally to partially disabled to ask their employer if they have light duty within their restrictions. If the employer doesn’t have light duty, we advise our client’s to file for unemployment benefits and to make ongoing efforts to find work within their medical restrictions and to document that effort. See N.Y. Workers’ Comp. And Unemployment Benefits.
Additionally, we encourage our clients to work with the rehabilitation staff of the Workers’ Comp. Board. Among other services, the rehabilitation staff assists claimants with retraining and job search.
The good news is that partially disabled claimants are eligible for reduced earnings when as a consequence of the work related injury they take employment for less money than their average weekly wage prior to the injury. Reduced earnings are tax-free and are 2/3 of the difference between pre-injury and post-injury earnings up to the maximum allowable benefit, which means in some circumstances folks will actually receive a greater benefit by returning to work at reduced earnings.
Thanks for reading,
Eric
____________________________________________
Eric L. Johnson
Ziff, Weiermiller, Hayden & Mustico, LLP
303 William St.
Elmira, NY 14902
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: ejohnson@zifflaw.com
Web: http://www.zifflaw.com
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August 10th, 2008 at 9:51 pm
Hello,
I came across your website and decided to ask you a question.
I was injured on the job. At the time I had two jobs. One (1) was physically demanding and my full time job;
The other part time and no physical nature.
Is it legal for me to be receiving payments for my partial dis while I am still working my part time job?
August 11th, 2008 at 6:24 am
Hi Tom,
The short answer is that it is not legal to get partial disability payments while working part time.
You are eligible for reduced earnings, which is 2/3 of the difference between pre-injury and post-injury earnings up to the maximum allowable benefit.
I have two other concerns: 1) Once your doctor makes you partial you have an obligation to go to your employer and see if they have light duty work available within your restrictions; and 2) Your average weekly wage should be calculated to include both your full-time and part-time employment.
You should consider representation Tom. If your hearings are in Elmira, give me a call.
Eric
____________________________________________
Eric L. Johnson
Ziff, Weiermiller, Hayden & Mustico, LLP
303 William St.
Elmira, NY 14902
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: ejohnson@zifflaw.com
Web: http://www.zifflaw.com
October 5th, 2008 at 7:31 pm
[...] If you’re a partially disabled Workers’ Compensation claimant, you have an obligation to make a good faith effort to look for work within your restrictions. The purpose of this post is to share some points of advise we give our clients. For background, see my post “NY Workers’ Comp and Labor Market Attachment.” [...]
July 3rd, 2009 at 7:29 am
If an injured worker is found to be partially disabled by an IME but totally impaired by their personal doctor, does the injured worker still have to look for work or does the personal doctors’ report exclude the injured worker from a job search?
July 3rd, 2009 at 1:17 pm
Hey Gordy,
You can probably depend on your doctor’s opinion of total disability for purposes of not having to look for work unless a Workers’ Compensation Law Judge recently found you to be partially disabled and there hasn’t been a change in your medical condition.
Good luck and thanks for reading,
Eric
____________________________________________
Eric L. Johnson, Esq.
Workers’ Compensation and Social Security Disability Attorney
The Ziff Law Firm, LLP
303 William St.
Elmira, NY 14901
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: ejohnson@zifflaw.com
Web: http://www.zifflaw.com
July 24th, 2009 at 8:13 pm
Regarding reduced earnings, what is the maximum allowable benefit or how many years are you entitled to it? Is there a chart I can look at or is it the same for everyone? This is a NY workmans comp case I am asking about. Thanks.
July 27th, 2009 at 11:08 am
Lisa,
The term “maximum allowable benefit” refers to the maximum rate, which is 2/3 of your average weekly wage up to whatever the maximum rate was at the time you where injured. For injuries occuring after July 1, 2009, the maximum rate is $600 per week.
As to how many years you would be entitled to reduced earnings, for injuries occuring before March 13, 2007, you COULD be eligible for reduced earnings for the rest of your life. After March 13, 2007, your eligibility for reduced earnings would PROBABLY be capped for the number of years corresponding to the degree of your permanent partial disability; however, the answer is unclear because the statute is unclear and this question has as yet to be faced by the Board.
Thanks for reading and thanks for your question,
Eric
___________________________________________
Eric L. Johnson, Esq.
Workers’ Compensation and Social Security Disability Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: ejohnson@zifflaw.com
Web: http://www.zifflaw.com
November 7th, 2009 at 6:49 pm
I have recently returned to work after back surgery. I was working 60 hrs a week grossing around 1150.00 a week. I am having a lot of problems with my back again and find my self unable to work the extra 20 hours a week. If my doctor places me on a forty hour work restiction i will only gross 700.00 a week would i be eligible for reduced earnings for 2/3 of the difference?
November 8th, 2009 at 7:17 pm
Marcus:
Based on what you’ve told me I would say that your situation is a prime example of reduced earnings. Please know though that the average weekly wage for purposes of Comp is generally figured off your previous 52 weeks of pay and any reduced earnings would be based on that average weekly wage.
When I request a hearing on reduced earnings, I submit at least one or two of my client’s paystubs with my request. It’s a good idea to have all of your paystubs since you’ve been back at work at reduced earnings at that first hearing.
Good luck and thanks for reading,
Eric
____________________________________________
Eric L. Johnson, Esq.
Workers’ Compensation and Social Security Disability Attorney
The Ziff Law Firm, LLP
303 William St.
Elmira, NY 14901
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: ejohnson@zifflaw.com
Web: http://www.zifflaw.com