NY Court Says Existence of Medical Restrictions Are Alone Insufficient to Establish Reduced Earnings Claim

A New York appellate court affirmed the state Board’s rescission of a WCLJ’s reduced earnings award where it found that while the workers’ compensation claimant did have medical restrictions following his clearly compensable injury, the claimant—whose employment was terminated for reasons having nothing to do with the injury—had not communicated those restrictions to other prospective employers. Accordingly, the prospective employer’s decision to hire or not to hire the claimant was independent of the claimant’s condition; his reduced earnings was not, therefore, based upon any causal connection with his injury [Matter of Butler v. Trustforte Corp., 2022 N.Y. App. Div. LEXIS 2501 (3d Dept., Apr. 21, 2022)].

Background

While the court did not give further details about what may have been a bizarre scenario, claimant was injured on May 8, 2018, when he was struck in the head by a window while working as a proofreader. His claim was later established for a neck injury, post-concussion syndrome and post-traumatic headaches. Claimant returned to work on June 28, 2018. Following his return, claimant informed the employer that he was experiencing, among other difficulties, cognitive and memory problems and trouble walking.

On July 31, 2018, claimant accepted an offer from the employer to work in a freelance capacity. His work duties were similar in that capacity but he was able to work from home and control his workload. As a freelance writer and proofreader, claimant was no longer paid a salary but was paid per assignment, with no quotas regarding the minimum or maximum number of assignments he had to complete.

WCLJ’s Decision

On October 17, 2018, claimant’s employment was terminated for reasons unrelated to his injuries. A WCLJ later found that claimant had a mild temporary disability and continued the case to determine claimant’s average weekly wage and reduced earnings. The WCLJ ultimately found that claimant did not demonstrate that his reduction in earnings was causally related to his compensable injuries. The WCLJ accordingly denied claimant’s request for a reduced earnings award in its entirety. The Board returned the case to the WCLJ for development of the record on the issue of claimant’s attachment to the labor market.

Following a hearing, the WCLJ found, in pertinent part, that claimant had demonstrated an attachment to the labor market effective June 5, 2019 and awarded reduced earnings beginning on that date and going forward. Upon review, the Board modified the WCLJ’s decision by finding, among other things, that claimant had not demonstrated that his reduced earnings subsequent to June 5, 2019 were causally related to his disability. Accordingly, the Board found no compensable lost time and rescinded claimant’s reduced earnings awards. Claimant appealed.

Appellate Court’s Decision

Initially, the appellate court set out the general rule, to-wit: When employment is lost due to factors other than a compensable injury, the claimant bears the burden of establishing that his or her disability contributed to any subsequent reduction in earnings. The court noted that, according to claimant, the medical restrictions due to his work-related disability included not lifting any heavy objects, having to take several breaks during the day due to fatigue and limited mobility that required the use of a cane and necessitated working in either a wide-open workspace or remotely.

The court observed that the record reflected that claimant applied for numerous jobs involving writing, proofreading and editing, which, according to claimant, were either similar to or easier than the job he held with the employer. Claimant testified that he did perform editing and writing work for employers for pay during the time period in question and that he had turned down some offers of volunteer employment and accepted others.

The court stressed that there was no indication in the record that claimant advised potential employers about his disability-related restrictions or that his ability to work was in any way impaired by his disability. Moreover, there was no proof that any potential employers refused to hire him due to his disability. Under these circumstances, the appellate court concluded that the Board’s determination that claimant failed to demonstrate that his reduced earnings were attributable to his disability was supported by substantial evidence. The Board’s decision would not be disturbed.

Comment

This case illustrates that, generally speaking, it isn’t sufficient for the claimant to show that he has medical restrictions resulting from his or her compensable injury. Those restrictions must actually affect his or her ability to work and particularly, such as was the case here, if those restrictions are not communicated to potential employers, it cannot be successfully argued that the claimant suffered loss of earnings based on those medical restrictions.