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CLAIMANT DID NOT DEMONSTRATE SUFFICIENT ATTEMPTS TO RETURN TO WORK TO WARRANT BENEFITS; TOTAL INDUSTRIAL DISABILITY CLAIM SENT BACK, JUDGE AND BOARD FAILED TO DISCUSS THE RELEVANT FACTORS IN THE DENIAL OF THAT CLAIM.

The Third Department determined claimant, who was found to have a work-related permanent partial disability, did not demonstrate a sufficient attachment to the labor market to warrant benefits. Claimant’s only attempt to go back to work was enrollment in an unfunded training program. The court sent the “total industrial disability” claim back because the Workers’ Compensation Law Judge and the Board did not cite any medical evidence in support of the denial of the “total industrial disability” claim:

Although the Board has found that a claimant remains attached to the labor market when it is shown that he or she is actively participating in a job location service or a Board-approved vocational rehabilitation … , we find that the Board’s determination here — that by relying solely on an unfunded training program, claimant was not actively participating in vocational rehabilitation and had voluntarily removed himself from the labor market — is supported by substantial evidence and will not be disturbed … .

… [A] “claimant who has a permanent partial disability may nonetheless be classified as totally industrially disabled where the limitations imposed by the work-related disability, coupled with other factors, such as limited educational background and work history, render the claimant incapable of gainful employment” … . While the Board’s determination regarding a total industrial disability will be upheld if supported by substantial evidence ,,, , “Workers’ Compensation Law § 23 requires the Board to include in its decision a statement of facts which formed the basis of its action on the issues raised” … .

Here, the WCLJ found a lack of total industrial disability based solely upon claimant’s failure to seek employment after his accident, with no discussion of the relevant factors relating to a total industrial disability. Matter of Walker v Darcon Constr. Co., 2016 NY Slip Op 05888, 3rd Dept 8-25-16

 

WORKERS’ COMPENSATION LAW (CLAIMANT DID NOT DEMONSTRATE SUFFICIENT ATTEMPTS TO RETURN TO WORK TO WARRANT BENEFITS; TOTAL INDUSTRIAL DISABILITY CLAIM SENT BACK, JUDGE AND BOARD FAILED TO DISCUSS THE RELEVANT FACTORS IN THE DENIAL OF THAT CLAIM)

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MORE THAN A YEAR’S DELAY IN PUBLIC ADMINISTRATOR’S SEEKING SUBSTITUTION... EXOTIC DANCERS WERE EMPLOYEES.