In New York, a partially disabled workers’ compensation claimant is obligated to look for work within his restrictions or otherwise demonstrate an attachment to the labor market in accord with Matter of American Axle. But, if a claimant is still employed and has a reasonable expectation of returning to work for their employer after their disability ends, then such claimant does not need to search for alternative work or otherwise demonstrate attachment.
In New York, a partially disabled workers’ compensation claimant is obligated to look for work within his restrictions or otherwise demonstrate an attachment to the labor market in accord with Matter of American Axle. But, if a claimant is still employed and has a reasonable expectation of returning to work for their employer after their disability ends, then such claimant does not need to search for alternative work or otherwise demonstrate attachment.
However, when an employer has a light duty position available that falls within the claimant’s medical restrictions, the employer should make a bona fide offer of light duty employment to the claimant. The Board has consistently held that “a claimant who suffers from a partial disability must generally accept light duty work within his or her ability in order to receive workers’ compensation benefits.” The Board has also provided certain criteria to follow so that such offer is bona fide and valid.
Generally, the light duty offer should:
(1) be in writing;
(2) provide a statement of how such offer of light duty employment is within the claimant’s medical restrictions;
(3) include a timeframe as to how long the offer will remain open;
(4) include a timeframe as to how long the light duty job will last;
(5) include the expected return-to-work hours; and
(6) be copied to all parties of interest, which includes the claimant, the claimant’s attorney(s), the Board, and the claimant’s treating medical provider(s).
Allowing a partially disabled claimant to return to work light duty lessens the indemnity strain on the carrier and produces productivity benefits for the employer. It is incumbent upon the employer and carrier to make sure that these general requirements are followed, otherwise the Board may preclude the offer and deem it invalid. As we know in the workers’ compensation setting, it is often easier for claimants to collect weekly indemnity checks than it is to return to work. Therefore, from a defense perspective, the employer and carrier must make sure that their return-to-work offer of light duty employment is bona fide, valid, and not subject to preclusion.
If you have questions about whether your potential offer of light duty employment is bona fide, valid, and not subject to preclusion, please contact one of our attorneys for assistance.
