Doing work search the wrong way can cost you your workers comp benefits!
If you have filed a workers comp claim and are unable to return to your previous job, at some point might become obligated to continue searching for work in order to maintain your workers comp benefits.
But how exactly do you search for work within your restrictions? How much searching do you need to do? And how do you effectively prove your search to a judge so they don’t suspend your ongoing benefits?
We’re going to answer all these questions right now!
My name is Rex Zachofsky and I became a New York workers compensation lawyer 17 years ago after getting injured on the job. If you’re looking for a lawyer to help you with your claim with New York Workers Compensation Benefits, please give me a call at 212-406-8989 to schedule a free consultation.
We’re also able to assist with Personal Injury Matters, Social Security Disability, and Labor & Employment Issues.
So what is work search in a New York workers compensation case?
If you get hurt at work and suffer a total disability that prevents you from doing your job, you can collect workers comp benefits to get medical treatment and financially support yourself. But as time goes on and your body recovers, you may reach a point where your doctor or a judge determines that you are only partially disabled and can begin to look for work within your restrictions.
At this point you are then obligated to perform an ongoing, diligent, and good faith search for work if you wish to continue receiving your weekly workers comp benefits. Failure to do so will result in the judge suspending your benefits until you're able to prove that you have reattached yourself to the labor market. But what does an “ongoing, diligent, and good faith search” really mean? How many job applications do you have to submit each day? How many per week?
Unfortunately, this isn’t clear to anyone, and each judge will interpret it differently. Some judges will only expect you to do a couple searches a week, while others will expect 4-5 per day!
That’s why I tell my clients, “please do as many as you can, because you don’t want to run the risk of a judge suspending your workers compensation benefits!” Think of searching for work as your job now, and approach it seriously if you want to continue getting paid.
Another very important thing to consider is that right now you have the opportunity to control your own destiny. When you get hurt and you have to prove your case, the evidence that you have to support your claim is whatever it was at the time of your accident. You can't change it.
But now you actually have the opportunity to create evidence and to proactively do things that will help your claim. The better your work search, the more likely it is that your benefits will continue. You have control over your case.
So how do you understand what your restrictions are and go about finding jobs that can accommodate them?
My recommendation is to first start by going to your doctor. Say “Hey doctor, the judge said that I have to do a work search, so can you please tell me what my limitations are?”
They can help you make a list to share with prospective employers. It might include things like “You shouldn’t stand for more than 10 minutes at a time,” “You shouldn’t sit for too long,” "You should be able to get up and sit down as needed" or “You shouldn’t lift, push, pull, or carry too much weight.”
Once you have this list, it’s your responsibility to go search for work that meets those requirements. You can then search for work in whatever way you prefer, including online, in person or over the telephone.
Just make sure that the jobs you’re applying for are actually hiring and could reasonably accommodate your restrictions, otherwise a judge might not consider your job search to be done in good faith. Don't go to Mike's General Concrete Company and apply to be a concrete and boulder mover because you probably can't do that. Look for jobs that you actually can do.
You also want to make sure to keep very clear and accurate records of all the jobs that you've tried to obtain. This includes the date that you applied, the person you spoke to, the method that you contacted them, whether or not they took an application and/or a resume, and the outcome of the contact.
If there's a job posting or an online listing, make sure you hold on to a copy. And again, this is your opportunity to produce evidence in support of your case. The more evidence you have to support your claim that you're doing a good faith work search, the better off you'll be. We're going to talk about this more in a moment.
Another thing you can do is visit one-stop work search agencies. Participation in these programs is sufficient to show that you have adequately performed a work search. But don’t just walk in, take a pamphlet, and walk out. Register with them and actually participate in the programs they offer. Not only will they help you with your claim, they will also provide skills and services that you will find useful.
Most agencies will then provide documentation proving that you were there and went through their programs. This is very important proof that you’ll need in order to defend your job search to the court, which is critical if you want to keep your benefits. There are various one stop agencies all around New York State that provide this type of assistance.
What are other forms of evidence you’ll need to prove that you performed an ongoing, diligent, and good faith work search to a judge? As you find suitable jobs and apply for them, you need to collect as much evidence as possible so there can be no doubt that you tried your best.
The first important piece of evidence required is form C258, which is the form you fill out to list all your job searches. You can get it from your workers compensation lawyer, or download a copy online. I’ll include a link in the description below.
When applying for jobs in person, another good piece of evidence to collect is a copy of the job posting, along with your notes listing the person you spoke to, their phone number, and the end result of your conversation. If the job posting is listed in a window or there's a “Help Wanted” sign, take a picture of it with your phone.
Sorry, but it’s not enough to just say that you walked into Joe’s Crab Shack and they said they’re not hiring. You need to collect this information so that it’s actually believable.
And if you’re applying for work online, not only do you want to keep copies of every job posting, but also all digital communication between you and the employer. If you send them an email saying “I am applying for this job,” save a copy of that email. When they respond saying “I’m sorry, we’re not able to hire you.” save that email too. You need to provide real evidence like this if you want to keep your benefits. I can’t stress this enough. You want to provide the court with so much evidence
And here’s a pro tip: you also want to include a decent resume.
Many judges have said “You produced this wonderful job search, where's your resume?” only to hear “Oh, judge, I don't have one.” The judge will then think there’s no way you’re doing a good-faith search for work, because people who look for work have resumes! I’m Denying Benefits!
Then after you’ve completed your good-faith work search, take all of this evidence—job postings, emails, your resume—and upload them on the website BEFORE the date of your hearing. If you have a lawyer, they'll upload it for you. Just make sure you get it to them in time.
Judges generally say that your evidence is required ten days before the hearing, so be sure to send your documents far in advance. Don’t give the judge the impression that you think this is a joke, because they won’t hesitate to suspend your benefits.
Finally, the last way to prove a work search is to actually find a job!
And you might not be able to find a job doing what you did before because you're injured. And you might not be able to find a job that you think is all that great, but finding a job shows a judge that you're serious about returning to work.
And if the best you can do is a light-duty job that accommodates your injuries, go for it. I always tell my clients you're better off working than not working. And if you're working at light duty or reduced earnings, earning less money than you were earning before, we can still make a claim to the court and try to get you additional benefits.
Many people think returning to work at a light-duty or reduced-earnings job looks bad in their case, it doesn't. It actually helps your case. It shows a judge that you're serious about returning to work.
If you have any questions about that, please reach out to your lawyer and discuss it with them. I get calls like that all the time, and I always tell my clients, “You're better off working than not working."
And if you or a loved one in New York State need assistance with work search or your workers compensation claim please give me a call at 212-406-8989 for a free consultation. Our conversation is confidential, costs you nothing, and can potentially save you thousands in benefits.
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🔹Form C258: https://www.wcb.ny.gov/content/main/forms/c258.pdf&sa=D&source=docs&ust=1678876530589628&usg=AOvVaw164ef4hrEoJG0VJpp3tdNZ