American Axle and ACCES-VR

By Rosalind Asch-Hobeck

Carriers raise labor market attachment and American Axle as soon as a doctor finds less than a total disability.  The Judge will often direct a work search within 60 or 90 days.  The carrier will often appeal a decision that finds the claimant attached to the labor market if the claimant has gone to ACCES-VR.  The carrier will take the position that one or two visits during the course of months is insufficient and not in accordance with the requirements set forth in American Axle.  

A case decided 01/24/25, Hampton NH Operating LLC, 2025 NY Wrk. Comp. LEXIS 338 addresses this issue:

The case concerns a claimant who sustained a right ankle injury on May 23, 2022, which was later expanded to include a consequential lower back injury. The core issue in dispute was whether the claimant remained attached to the labor market, as required for continued workers' compensation benefits.

In January 2024, the Workers’ Compensation Law Judge (WCLJ) required the claimant to conduct a job search every 60 days.By April 2024, benefits were suspended pending further evidence of the claimant’s labor market attachment. At a hearing on May 21, 2024, the claimant testified that she had been accepted into Adult Career and Continuing Education Services – Vocational Rehabilitation (ACCES-VR) and had attended a five-hour vocational evaluation. She planned to continue with further assessments and possibly pursue a nursing career. The WCLJ ruled that the claimant met the labor market attachment requirements under the American Axle standard, as she was actively participating in vocational rehabilitation.

The insurance carrier contended that the claimant had not demonstrated sufficient labor market attachment, arguing that her benefits should remain suspended and prior awards rescinded.

The Workers’ Compensation Board upheld the WCLJ’s decision, determining that participation in ACCES-VR constituted sufficient labor market attachment under Matter of American Axle and Matter of Zamora v. NY Neurologic Assoc. The Board found the claimant's testimony credible and ruled that she demonstrated an effort to re-enter the workforce within her medical restrictions.  The Board affirmed the WCLJ’s decision, reinstating the claimant’s benefits and directing the carrier to continue payments.

The key takeaway from this decision is that when a carrier challenges labor market attachment, claimants should register with and actively participate in ACCES-VR programs. While success is not guaranteed, the Board has generally viewed favorably those claimants who engage with ACCES-VR’s services in an effort to reenter the workforce.

American Axle, 2010 NY Wrk Comp 80303659
Zamora v. New York Neurologic Assoc., 19 NY3d 186.