Absent Finding of Partial Disability, NY Claimant Need Not Show Attachment to Labor Market

A New York appellate court held yesterday that where an employer raised the issue of labor market attachment at a hearing on the claim and the WCLJ did not make a finding that claimant had sustained a permanent partial disability, but rather issued an order for continued awards at a tentative rate with further direction that the record be developed on the issues of labor market attachment and loss of wage-earning capacity, it was error for the Board to rule, among other things, that the claimant was required to demonstrate attachment to the labor market; she was entitled to rely upon her chiropractor’s opinion that she was temporarily totally disabled [Matter of Bowers v. New York City Tr. Auth., 2019 N.Y. App. Div. LEXIS 8801 (3d Dept. Dec. 5, 2019)].

Board’s Decision

Acknowledging that the WCLJ did not expressly find that claimant had sustained a PPD, the employer nevertheless opposed claimant’s application, arguing that claimant’s most recent medical proof established that she had only a 75 percent disability and, further, was capable of sedentary work. The Board affirmed the WCLJ’s decision directing further development of the record on the issue of labor market attachment as well as on the issue of permanency. Despite the obvious open-ended finding on the part of the WCJL, the Board nevertheless determined that she was obligated to show continued attachment to the labor market.

Appellate Court Disagrees

The Third Department disagreed. Citing several precedents, the court stressed that claimant’s obligation to demonstrate attachment to the labor market was predicated — in the first instance — upon a finding of a permanent partial disability. The court added that as claimant had correctly observed, the WCLJ made no such finding here.

The court acknowledged that the record contained conflicting medical evidence on the point, but nothing on the face of the WCLJ’s decision suggested that the WCLJ weighed the competing reports and reached a determination as to the nature and degree of claimant’s disability. The court stated further, that the Board’s finding that claimant was awarded benefits “at a partial rate of disability in the [WCLJ’s] decision filed February 6, 2018” and, hence, was “aware that she was considered to have a partial rate of disability” and of the corresponding need to “search for work” as of that date, was belied by the WCLJ’s decision, which continued awards to claimant at a tentative rate. Absent a finding that claimant sustained a PPD, any directive that claimant demonstrate attachment to the labor market was premature.