NY Court: “Attachment to Labor Market” Amendment Not Always Applied Retroactively
The 2017 amendment to N.Y. Workers’ Comp. Law § 15(3)(w), which relieves some permanently partially disabled claimants of the obligation to show labor market attachment, does not apply retroactively in all cases, held a New York appellate court in Matter of Pryer v. Incorporated Village of Hempstead, 2019 N.Y. App. Div. LEXIS 6553 (3d Dept., Sept. 12, 2019). The appellate court ruled that where the Board specifically determined—prior to the effective date of the amendment—that the claimant had failed to demonstrate continued attachment to and had voluntarily withdrawn from the labor market, the amendment did not apply.
Background
In February 2012, claimant injured his back in a work-related accident. His claim was established and he did not thereafter return to work. Following a July 2014 hearing, a WCLJ classified claimant as having a PPD under N.Y. Workers’ Comp. Law § 15(3)(w), with a loss of wage-earning of 85 percent. In as much as claimant was not working at that time, the WCLJ further found that he was entitled to PPD benefits.
The WCLJ continued the case to address the issues of claimant’s voluntary withdrawal/retirement and labor market attachment. Following an August 2014 hearing, the WCLJ found that claimant did not voluntarily retire and was not attached to the labor market. Due to claimant’s lack of labor market attachment, the WCLJ did not direct any further awards subsequent to August 21, 2014. Claimant appealed this decision to the Board, which affirmed in August 2015.
Statutory Amendment
Thereafter, claimant filed a request for further action based upon a change in the law. During proceedings before the WCLJ in November 2017, claimant raised the issue of his entitlement to benefits under a recently enacted amendment to § 15(3)(w), effective April 10, 2017, which he contended dispensed with the requirement that he demonstrate attachment to the labor market in order to continue to receive permanent partial disability benefits. The WCLJ concluded that the amendment applied and directed the retroactive payment of benefits to claimant at the permanent partial disability rate of $772.96 from August 21, 2014 through November 16, 2017.
On appeal, the Board concluded that the amendment did not apply because, at the time that the amendment went into effect, claimant was not attached to the labor market. Consequently, the Board ruled that claimant was not entitled to the continuation of PPD benefits without a demonstration of labor market attachment. Claimant applied for reconsideration and/or full Board review of this decision and it was denied. Claimant appealed both decisions.
Matter of O’Donnell Decision
Claimant argued that under a plain reading of the 2017 amendment, together with the Court’s decision in Matter of O’Donnell v Erie County, 162 A.D.3d 1278, 78 N.Y.S.3d 506 (2018), leave granted, 32 N.Y.3d 907, 89 N.Y.S.3d 114, 113 N.E.3d 948 (2018), the Board had erred.
The Court acknowledged its holding in Matter of O’Donnell, observing that the Court applied the 2017 amendment retroactively to a claimant who was classified as permanently partially disabled in September 2015, prior to the April 10, 2017 effective date of the amendment. There, the claimant had retired from her position following her injury, and her retirement was deemed an involuntary withdrawal from the labor market. The Court stressed, however, that in O’Donnell, there was no final Board decision on the issue of the claimant’s labor market attachment as of the effective date of the amendment.
Matter of Scott v. Visiting Nursing Home Care
The Court contrasted O’Donnell with its decision in Matter of Scott v. Visiting Nurses Home Care, 172 A.D.3d 1868, 101 N.Y.S.3d 767 (2019), in which the Court held that the amendment did not necessarily apply to all claimants previously classified as permanently partially disabled. In Scott, the claimant had an established claim resulting from a 1993 accident, was classified as permanently partially disabled in 1998, and received awards based on her reduced wage-earning capacity. Her case was reopened in 2015 to address her attachment to the labor market. In December 2016, the Board ruled that the claimant had failed to demonstrate continued attachment to the labor market and had voluntarily withdrawn from the labor market, effective December 29, 2015, and suspended awards as of that date.
The Court observed that in Scott, it had concluded that because the Board had issued its decision in December 2016 addressing claimant’s labor market attachment and voluntary withdrawal, which was prior to the effective date of the amendment, the amendment did not apply retroactively to relieve her of her obligation of demonstrating continued attachment to the labor market in order to continue to receive permanent partial disability benefits.
The Instant Case Similar to Scott
The Court then stressed that the instant case was quite similar to the situation in Scott. As was the case in Scott, the Board’s August 2015 decision was issued well before the effective date of the 2017 amendment and, as such, this was not a situation in which retroactive application of the amendment was appropriate.