CORRECTED: An earlier version of this article misstated the outcome of the appeal.

A construction firm cannot rescind a workers compensation award to an undocumented injured worker who it claimed failed to prove he sought alternative employment, a divided New York appeals court ruled on Thursday.

Julio Policarpio, a construction worker, was injured at work in 2017 and was awarded workers compensation benefits at a temporary partial disability rate. After the employer and its workers compensation insurer raised the issue of “labor market attachment,” the benefits were discontinued due to the claimant’s failure to document that he sought employment, according to documents In the Matter of the Claim of Julio Policarpio v. Rally Restoration Corp. et al. Workers’ Compensation Board, filed in the Appellate Division of the Supreme Court of New York, Third Department, in Albany.

At a hearing in 2019, Mr. Policarpio, “an undocumented alien who speaks limited English and does not read or write English, testified through an interpreter regarding his employment history since arriving in the United States and his unsuccessful efforts to obtain employment” in 2018.

A Workers’ Compensation Law Judge then issued a decision finding that he had “demonstrated a timely, diligent and persistent effort to find a job” and awarded him benefits at the partial disability rate.

The employer and the insurer appealed. In 2019, the Workers’ Compensation Board found that “claimant had failed to produce sufficient evidence” at the earlier hearing “to establish that his job search was timely, diligent and persistent so as to demonstrate a reattachment to the labor market.”

In reversing, the appeals court ruled that the board “made no finding that claimant failed to avail himself of retraining, rehabilitation and/or job-location programs or services that were available to him as an undocumented, injured worker, or that he did not actively and persistently seek work consistent with his medical restrictions so as to support its conclusion that his job search lacked good faith.”

The worker, in turn, “submitted completed forms listing 62 businesses to which he applied for work” in 2018 “as a prep cook, dishwasher, restaurant helper and ironing worker. He identified potential employers by walking around two boroughs of New York City two or three days per week, seeking work that would not require a Social Security number, which he lacked due to his undocumented status.”

Two judges dissented, writing that “substantial evidence” supported the board’s decision and that Mr. Policarpio’s testimony that “he walked around New York City and stopped at certain businesses to inquire about work, without any apparent plan or explanation as to why these businesses were targeted” was insufficient to prove that he was engaged in the labor market.

“More than a third of those businesses had no positions available,” the dissent states. “Claimant did not attempt to find advertisements for available positions and focus his applications on those businesses.

“Based on this record evidence, it does not seem unreasonable for the Board to have concluded that ‘claimant’s in-person job search efforts appear to be lacking in good faith’ and, accordingly, that he did not establish his reattachment to the labor market,” the dissent states.