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Subject Number 046-958 Claimant Record of Job Search Efforts Revised Board Form C-258 and New Board Form C-258.1

Board Bulletins and Subject Numbers

July 13, 2017

This Subject Number is intended to describe the existing legal framework for labor market attachment, and introduce a revision to Form C-258 and a new Form C-258.1. The only significant recent change in the law arises from Part NNN of Chapter 59, Laws of 2017, which, at subpart A, amends Workers' Compensation Law 15(3)(w) in several ways, including with respect to efforts to demonstrate attachment to the labor market after classification.

Claimant's obligation to seek work within his or her physical restrictions to show labor market attachment

The Board recently revised Claimant's Record of Job Search Efforts/Contacts (Form C-258), and developed the new Claimant's Record of Independent Job Search Efforts (Form C-258.1), which should be used by all claimants to keep accurate records of job searches and other efforts to attach or reattach to the labor market. Form C-258 can be used to record independent efforts made by the claimant, and/or for job search efforts with assistance from outside job-placement services (such as the Department of Labor One-Stop), or enrollment in an educational institution for the purpose of obtaining future employment. If a job search is conducted independently, claimants must complete Form C-258.1. If the claimant is setting forth independent job search efforts, he or she can use Form C-258.1 without also completing Form C-258. Both forms are available online and can be saved and printed. The completed Forms C-258 and C-258.1 are considered as evidence by the Board in determining the claimant's attachment to the labor market. Claimants should consult with their attorney or licensed representative, if applicable, before completing the forms and submitting them to the Board.

Forms C-258 and C-258.1 must be filled out completely and accurately. Failure to provide adequate detail can lead to a finding by a Workers' Compensation Law Judge (or, if administrative review is sought, by a Board Panel or the Full Board) that the claimant is not attached to the labor market, which would mean that benefits will be stopped for a specific period of time, and/or on an ongoing basis.

What is labor market attachment?

To continue to receive ongoing lost-wage benefits, a partially disabled claimant is obligated to demonstrate "labor market attachment." A claimant is considered to be attached to the labor market if he or she is found to be making reasonable efforts to obtain gainful employment that is consistent with his or her medical restrictions. A partially disabled claimant need only seek employment within his or her medical restrictions. A claimant who fails to make reasonable efforts to obtain gainful employment consistent within his or her partial disability, may be found to have voluntarily withdrawn from the labor market.

The employer or insurance carrier can ask the claimant about his or her efforts to remain attached to the labor market. For a claimant to prove to the Board that these efforts are reasonable and adequate, Claimant's Record of Job Search Efforts/Contacts (Form C-258) should be used. If the claimant is showing efforts to attach solely by means of an independent job search, Claimant's Record of Independent Job Search Efforts (Form C-258.1) should be used instead of Form C-258. Whether a claimant actually maintains sufficient attachment to the labor market to justify continued compensation benefits is a factual determination for the Board.

Must all claimants demonstrate labor market attachment?

In the 2017 Workers' Compensation reform legislation (Chapter 59, Laws of 2017, effective April 11, 2017) there was a statutory change to Workers' Compensation law (WCL) section 15(3)(w), affecting labor market attachment. The law now provides that if a claimant is entitled to benefits at the time he or she is found to be permanently disabled, he or she no longer needs to demonstrate ongoing attachment to the labor market. Nevertheless, if there is a finding at the time of classification that the claimant is not attached to the labor market, he or she does need to demonstrate ongoing attachment. The change in the law does not affect claimants who are in temporary disability status; they remain obligated to demonstrate attachment to the labor market.

Causally-Related Lost Earnings

The issue of attachment is distinct from the issue of causally-related lost earnings. While claimants attached at the time of classification now need not show reasonable efforts to seek work, there can remain a question as to whether the disability was the reason why full-time work was ceased. See for example Matter of Launer v Euro Brokers, 115 A.D.3d 1130 (2014), Matter of Smith v Consolidated Edison Co. of N.Y., Inc., 68 AD3d 1299 (2009)

How does a claimant demonstrate attachment to the labor market?

The Board provided guidance on this question in a significant 2010 Board Panel Memorandum of Decision in Matter of American Axle, 2010 NY Wrk Comp 80303659.

Pursuant to American Axle, attachment to the labor market can be demonstrated by credible documentary evidence showing that the claimant is actively seeking work within his or her work restrictions through one or more of the following methods of seeking employment:

  1. An independent job search that is timely, diligent, and persistent;
  2. Active participation in a job-location service such as
    1. New York State's Department of Labor's re-employment services,
    2. One-Stop Career Centers,
    3. A job service commonly utilized to secure work within a specific industry;
  3. Active participation in vocational rehabilitation through Adult Career and Continuing Education Services Vocational Rehabilitation (ACCES-VR) or other Board-approved rehabilitation program;
  4. Active participation in a job-retraining program;
  5. Attendance at an accredited educational institution full time to pursue employment within the work restrictions.

How can the claimant demonstrate an independent job search?

An "independent job search" occurs when a claimant searches and applies for work on his or her own, by in-person contact, telephone, email, or web search. At a minimum, if the independent job search is in person, documentary evidence should provide the day, month, and year of the contact; the name and address of the employer; the name and telephone number of the person with whom potential employment was discussed; the type of job sought; and the response of the potential employer. If the contact was written, documentary evidence should include: copies of the resume submitted, if any; the inquiry letter or email communication; or the completed application is necessary, along with the day, month, and year submitted, the nature of employment sought, name and address of the employer and the response of the potential employer.

Form C-258.1 should be used to maintain a record of an independent job search. Each page of Form C-258.1 provides four spaces to complete the date of contact, method of contact (e.g., telephone), employer name and contact information, and information about an electronic confirmation number, if relevant (see discussion of online searches, below). If additional space is needed beyond four employers, claimants can add additional sheets online, or print additional forms, as needed. Be sure to complete the period of time relating to the job search in the space provided at the top of the form.

How can the claimant demonstrate an online job search?

The Board recognizes that many job applications are now filed online or posted on internet job sites that are controlled by the employer or a posting site. An applicant using these websites to search for work typically is not provided with the evidence of an in-person job search that is required by the American Axle decision. However, "[m]any employers and job posting sites that accept applications online provide an email confirmation and/or a reference number when an individual uses their site" (Matter of Suffolk County Health Services, 2016 NY Wrk Comp G0713095). Therefore, if the claimant has been provided with a confirmation email or reference number, that information should be provided on Form C-258.1.

What is required to show active participation in a job-placement service?

As stated in the American Axle decision, an independent job search must be documented to be timely, diligent, and persistent. Similarly, if the claimant is using a job placement service such as One-Stop, or is making efforts at vocational rehabilitation, there must be documentation to show the claimant's active participation in these efforts. "Active participation at a One-Stop Career Center means calling for an appointment, attending an orientation session, meeting with a One-Stop counselor to develop a resume, registering a resume in the One-Stop system, maintaining contact with the One-Stop Career Center to determine whether there were any job matches, and following up on all job referrals and matches." (American Axle)

Use Forms C-258 and C-258.1 to document job-search efforts. There are sections on Form C-258 relating to One-Stop and similar services, ACCES-VR or other rehabilitation services, and full time educational enrollment.

Does the claimant need any other evidence to show labor market attachment?

Forms C-258 and C-258.1 provide evidence that a claimant is attached to the labor market, but if permanency has yet to be found, the claimant will also need to provide medical evidence indicating a causally related disability for all periods of lost time claimed. The Workers' Compensation Law Judge will then review the medical evidence submitted to determine whether the claimant is disabled and entitled to compensation benefits.

Claimants and their legal representatives (if there is one) should review the case folder (eCase) to ensure that medical evidence was received by the Board. Awards will be made only for periods where medical evidence shows that the claimant has a causally related disability.

If a hearing is scheduled on the issue of attachment to the labor market, the claimant who wishes to document attachment efforts should bring all relevant evidence that has not already been scanned into the claims file, Forms C-258 and C-258.1 that he or she has used to document his or her work search efforts, and other supporting documentation, to the hearing for consideration by the Workers' Compensation Law Judge.

Kenneth J. Munnelly