NY Case Illustrates Failure of RTW, When There's No Work

On Friday I commented about the need for those injured at work to get back to work - but what if there isn't work to get back to? This rhetorical question was intended to highlight a reality of return to work schemes that must be considered.

A New York case illustrates the unfortunate reality for those caught in the maelstrom of the existing economic malaise, and how our social systems fail those who do seek return to productivity.

In Leslie v. Eastman Kodak Co., No. 511741, 11/17/11, the employee (Leslie) experienced work-related injuries to both shoulders in 1999. He underwent shoulder surgery in April 2004 and September 2004.

In February 2006, a workers' compensation law judge awarded him a 55% scheduled loss of use of his left arm, and a 52.5% scheduled loss of use of his right arm, which entitled him to 355 weeks of benefits.

After these awards were exhausted, Leslie applied for additional workers' compensation benefits under Workers' Compensation Law 15(3). This law states that after a claimant exhausts a scheduled loss of use award that is 50% or greater, additional compensation is payable if the claimant can establish that their continued lack of earning capacity is solely attributable to the established injury.

In 2009, the Workers' Compensation Board ruled that Leslie was eligible for benefits, and returned the case to calendar to establish the appropriate awards. In 2010, the board rescinded that decision, concluding that the poor economy was a large cause of his lack of earning capacity.

The appellate court upheld the denial of additional benefits, stating in its opinion:

“Here, claimant testified that, after being laid off by the employer, he attempted to obtain employment in both real estate sales and tax preparation but was unable to do so because of the poor economy. Claimant further testified that he was currently employed as a security guard for 16 hours per week and was available to work more, but the employer had no additional work available. In light of such testimony, substantial evidence supports the board's decision that the impairment of claimant's earning capacity is due in part to economic factors and not solely to his established injury.”

The case opinion does not state when Leslie was laid off from his employment, whether he actually returned to his pre-employment job, or whether there was any overlap in receipt of disability indemnity and employment, etc.

It is also unclear in the opinion whether Leslie availed himself of unemployment benefits, or if he even qualified for them. New York state provides various programs for people who are down on their luck.

In a perfect world this injured worker would not be an issue, because the facts clearly reflect a desire to return to work and a productive lifestyle. The reality is that the economy isn't going to let this happen.

One of the great challenges when writing laws is designing to accommodate a specific set of circumstances, in this instance a health-related employment disruption (many thanks to Jennifer Christian, MD for that phrase), where there is overlap with another set of related but disparate circumstances - as reflected by this case, an economic-related employment disruption.

It seems that Leslie in this case ended up in the proverbial rock and hard place: between a "health-related employment disruption" and an "economic-related employment disruption".workers compensation, work comp, injured worker