A recent NY decision, “Matter of Damin v Stop & Shop”, 2014 NY slip Op 01650, 3/14/14, once again shows the importance of employer involvement to produce useful results in compensation claims. Although the decision is from a NY court the lesson is universal – employers who are directly involved in their claims will be the ones to see benefits.
Employer Return to Work Held Up In Court, Carrier Inquiry Didn’t
A worker who was classified as permanently partially disabled was sent a letter from the carrier asking for recent details of the worker’s efforts to find work. When two requests went unanswered, the carrier asked to reopen the claim and have further payments halted because the worker had voluntarily retired from the labor market (or at least had provided no information that he was still part of the labor market). The court ruled that benefits should continue since the carrier had not offered a job, offered retraining or offered assistance with a job search.
The recent decision contrasts sharply with the Browne v Medford Multicare decision of 2011, where a worker had payments halted because he refused to participate in an employer created return to work program. But the two cases are not contradictory. Where the employer is directly involved and a real job offer has been made the outcome will be far better than merely having a carrier make a bare inquiry as to recent efforts.
But the court in the recent case cited return to work efforts that are best made by an employer, not a carrier. And there is far more credibility attached to a former employer providing a modified job at a location where employee had previously worked than a mere inquiry about recent job searches made by a carrier.
Efforts at Workers Comp Cost Reduction Should Not Be Left to Carrier
Efforts at comp claim cost reduction should not be left to a carrier. An employer involved in the details from the outset will be setting the stage for real accomplishments in every state. However, the natural tendency has been for employers to assume that they must wait until the carrier or TPA makes the first moves, an incorrect plan of action. An employer with a plan in place will be far ahead of an employer waiting to react to a carrier’s actions, if, in fact, the carrier has any action at all.
Employers should realize that their roles cannot be passive.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net
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