The Full Board, at its meeting on November 15, 2011, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on April 15, 2011.
The issues presented for Full Board Review are:
By a decision filed August 10, 2009, the WCLJ amended the claim to include the claimant's back and found that the claimant remained attached to the labor market.
In a Memorandum of Decision (MOD ) filed April 15, 2011, the Board Panel majority disagreed with respect to both issues and reversed the WCLJ's decision.
However, the dissenting Board member would have affirmed the amendment of the claim to include the back, but agreed that claimant did not remain attached to the labor market.
In her application for Mandatory Full Board Review filed on May 16, 2011, the claimant argues that she provided her treating physician, Dr. Subin, with an accurate history of injuring her back when she fell and slipped at work, and that, Dr. Subin's opinion on causality of her back injury should be accorded appropriate weight. The claimant further contends that while she may not have participated in VESID or One Stop, she conducted an adequate work search within her limitations sufficient for a finding of labor market attachment.
In a rebuttal filed with the Board on June 10, 2011, the carrier argues that there is no substantial or credible medical evidence to support amendment of the claim to include a causally related back injury, and that the claimant did not remain attached to the labor market.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On November 21, 2004, the claimant, then a 19 year old waitress, sustained injuries when she slipped and fell at work. By Notice of Action on Proposed Decision filed November 18, 2005, the case was established for the claimant's neck, right knee, and right arm. The claimant's average weekly wage was set at $265.02.
The claimant first sought medical treatment for her work injury on November 22, 2004, at an urgent care facility. The handwritten doctor's notes from that visit indicate that the claimant complained of pain to her knee, shin, neck, arm and shoulder. The claimant sought treatment for her work related injuries throughout 2005. The medical reports during that time period do not indicate treatment to the claimant's back specifically; they list the claimant's chief complaint as pain in her entire right side, and specifically, right knee and shoulder pain.
A form C-2 dated November 26, 2004, completed by the employer indicated that "while the claimant was leaving the restaurant, she slipped and fell on the tile floor. This resulted in soreness to her right heel up to her hip, her back and her neck, but specific injuries are unknown." (see Document I.D. No. 97898332 filed 12/6/04).
At a conciliation meeting held on October 11, 2005, the claimant raised a back injury.
The record contains unsigned medical reports dated March 7, 2006, May 9, 2006, and July 20, 2006, from Dr. Alvin Viray, attached to an RFA-1 (see Document I.D. No. 138900823 filed 4/21/08). The reports dated May 9, 2006, and July 20, 2006, indicate that the claimant complained of back pain during those visits, specifically pain radiating to her back when her right foot was touched (report of May 9, 2006) and back pain right (report of July 20, 2006).
Pursuant to the request of her treating physician at the time, Dr. Fergeson, the claimant underwent a functional capacity evaluation that took place over the course of two days, January 4 and January 5, 2007. The evaluation indicates that, among other locations, the claimant had "pain in her lower thoracic to low lumbar in centrally with some radiation into paraspinals." (see Document I.D. No. 12305987 filed 1/16/07).
Further evaluations included a neurological visit with Dr. Jeffrey Donat on February 6, 2007. In the report from that visit, the claimant gave a history of slipping at work and described her pain as being "all over." It goes on to state that the claimant complains of pain specifically in the foot/ankle/knee/thigh/hip/back/right shoulder and right upper extremities. It further states that an MRI of the lumbar spine is negative.
The next medical report in the Board's file is that of Dr. Anthony Grippo, for an examination of the claimant that took place August 28, 2007. The report from that exam indicates that the claimant's purpose in obtaining the exam was to have welfare forms filled out and a note regarding work restrictions. At that exam, the claimant used a wheelchair in the waiting room and presented with back pain, among other ailments, including shoulder, knee and neck pain. The claimant denied any prior or intervening accidents or hobbies that would contribute to her pain. Dr. Grippo opined in the report that, to reasonable degree of medical certainty, the claimant's work related injury was not causing the problems with which she presented at the visit. Dr. Grippo recommended that the claimant obtain a primary physician, since, at the time, she had just moved to the Elmira, NY area, and he felt that some of the medications she was using were not helping her.
The claimant then came under the care of Dr. Kenneth Subin, an occupational health specialist. Dr. Kenneth Subin, testified by deposition on May 4, 2009, that the claimant first visited his office for treatment on October 16, 2007, and was seen by a nurse practitioner; the doctor first treated the claimant personally on October 29, 2007. Dr. Subin noted that the history of injury given to him by the claimant was as follows: "while she was sitting in a booth waiting for a cab to pick her up from work, she slipped on a wet floor and fell onto her right side hurting her right neck, shoulder, arm, right leg, to her front and back." (Deposition transcript, 5/4/09, p. 4). The claimant presented with pain in her right upper and lower extremities, neck, and back. His impression was neck, back, right upper extremity and lower extremity pain, etiology undetermined, depression and anxiety. The claimant had further evaluations including a cervical spine MRI study on January 23, 2008, that showed no acute change, but some posterior disc bulging.
In March 2008, Dr. Subin diagnosed the claimant with thoracic and lumbar strain. Based on the history given to him by the claimant and no medical evidence to the contrary, the doctor opined that the claimant's back symptoms were causally related to her November 21, 2004, injury. On cross-examination, Dr. Subin conceded that if the claimant had sustained an injury to her back in the November 21, 2004, accident, he would have expected to see some type of medical report documenting a back problem prior to 2007. Dr. Subin had not reviewed any of the claimant's medical records prior to ones from 2007. The doctor also conceded that he had not elicited information regarding any pre-existing back treatment, injury or problems prior to November 21, 2004.
The last form C-4 in the file from Dr. Subin is dated June 10, 2008. It includes the following diagnoses for the claimant: cervical strain, pain; right trapezius and shoulder strain; questionable right shoulder impingement; right upper extremity paresthesias, etiology undetermined; thoracic and lumbar strain; right knee sprain, rule out internal pathology; right lower extremity parasthesias, etiology undetermined. Dr. Subin notes that the claimant can work but should maintain a modified duty capacity, with the following restrictions: posture (no more than 4 hours standing and 2 hours kneeling/squatting/bending/stooping/pushing/pulling), motion (no more than 4 hours walking and 2 hours climbing stairs/overhead reaching), lifting (no lifting more than 10 lbs.), and use of a knee brace.
Beginning in July 2008 and continuing into 2009, the claimant received a course of chiropractic treatments for her back.
On January 16, 2008, the carrier's consulting physician, Dr. Charles Reina, noted that the claimant had a thoracolumbar strain that was "probably" causally related to the November 21, 2004, accident.
At the hearing held on April 17, 2009, the claimant testified (via telephone) that she was working as a waitress at the time of her injury, returned to the same employment after her injury but was fired eight months later. A few months thereafter, she went to work as a cashier at a supermarket and then moved on to a higher paying service advisor job at an auto dealership. The claimant last held a paying job in May 2006, when she was terminated from the dealership for not bringing in enough cash flow. The claimant did light duty volunteer work at the American Red Cross as a blood recruiter and receptionist, for 20 hours per week, in December 2007, June 2008, September 2008 and October 2008 as part of a work program required by public assistance. The claimant testified that since October 2008, she has looked for work and submitted applications to various businesses in Elmira, New York. In March 2009, the claimant moved from Elmira, New York to Middletown, New York. Since her move to Middletown, she has looked for work at Horton Hospital and one unnamed medical office. She has not sought retraining or job placement assistance. She claims that she tried to go through VESID but that due to a defaulted loan, she is unable to go back to school.
On cross-examination, the claimant testified that social services required her to maintain a job search in order to continue receiving her benefits, but that in June 2008 the requirement was lifted since social services classified her as disabled due to depression. She testified that, despite this, she has looked for work since June 2008. She conceded that if she found employment, her social services benefits would be diminished.
The claimant testified further that she felt back pain immediately after her work-related accident, and that she reported it to her doctors. She was unaware that her initial medical reports only mention symptoms in her knee and shoulder. She never had an injury to her back prior to November 2004.
No employer witnesses testified at the hearing.
At the hearing held on June 2, 2009, the claimant's attorney and the carrier's attorney provided summations to the WCLJ. The claimant's attorney submitted a handwritten sheet to the WCLJ wherein the claimant listed titles of jobs for which she allegedly applied, but most of them did not contain the employer's name and none of them indicated the date of application. The WCLJ did not find it to be of probative value given that the claimant was not present to testify and that the list did not contain any dates.
By Reserved Decision filed August 10, 2009, the WCLJ amended the case to include the claimant's back, and found that the claimant remained attached to the labor market and that her reduced earnings were causally related to her compensable injuries.
In her application for Mandatory Full Board Review, the claimant argues that Dr. Subin received an accurate history from the claimant, and, therefore, his opinion on causality should be accorded appropriate weight. The claimant further contends that while she may not have participated in VESID or One Stop, that she conducted an adequate work search within her limitations sufficient for a finding of labor market attachment. In rebuttal, the carrier argues that there is no substantial or credible medical evidence to support amendment of the claim to include a causally related back injury, and that the claimant did not remain attached to the labor market.
Amendment/Claimant's Back Injury-Condition
"It [i]s claimant's burden to establish a causal relationship between his employment and his disability by competent medical evidence (see Matter of Sale v Helmsley-Spear, Inc., 6 AD3d 999 ; Matter of Keeley v Jamestown City School Dist., 295 AD2d 876 ).
While the initial medical reports following the November 24, 2004, accident indicate that the focus of the claimant's treatment was on her shoulder and knee, the employer's form C-2 dated November 26, 2004, (two days after the accident) specifically indicates that the claimant was experiencing soreness in her back. The claimant raised a back injury at the conciliation meeting held on October 11, 2005, which strongly suggest that she was experiencing symptoms with respect to her back that she believed to be related to her work injury. As pointed out by the dissenting Board Panel member, the functional capacity evaluation report dated January 4, 2007, noted a history of lower thoracic to low lumbar pain. In addition, there is medical evidence in the Board file that the claimant treated for back pain in 2006: the reports of Dr. Viray dated May 9, 2006, (which report indicates that the claimant experiences pain radiating to her back when her right foot is touched) and July 20, 2006, (which report indicates that the claimant's main complaint was back pain; the assessment/plan indicated: neck pain/back pain, MRI cervical spine, advised she needs to see neurology, continue Lidoderm patch). These reports are attached to a form RFA-1, are not specifically categorized as "medicals," and do not appear to have been considered by the Board Panel.
Furthermore, it is undisputed that the claimant has no history of prior back problems or injuries. Given this fact, coupled with the aforementioned evidence, the report of Dr. Subin finding causal relationship should be afforded its proper weight in finding a causal relationship between the claimant's back condition and her compensable accident. Moreover, the opinions of Dr. Subin and Dr. Reina with respect to causal relationship are not inconsistent. Thus, the preponderance of the evidence in the record supports a finding that claimant has met her burden in establishing that her back injury is causally related to her November 21, 2004, work-related injury.
Labor Market Attachment
A claimant who is temporarily partially disabled must demonstrate an attachment to the labor market to be entitled to continuing compensation benefits (see Matter of Bacci v Staten Is. Univ. Hosp., 32 AD3d 582 ). A partially disabled person need only seek employment within his or her medical restrictions (Matter of Sanchez v Consolidated Edison Co. of N.Y., Inc., 40 AD3d 1153 ) and for which he or she is qualified (see Matter of St. Francis Constr. Co., 2009 NY Wrk Comp 30705539).
Attachment to the labor market can be demonstrated by credible documentary evidence showing that claimant is actively seeking work within the restrictions through an independent job search that is timely, diligent, and persistent; or is actively participating in a job-location service such as (1) New York State's Department of Labor's re-employment services, (2) One-Stop Career Centers, or (3) a job service commonly utilized to secure work within a specific industry; or is actively participating in vocational rehabilitation through VESID or other Board-approved rehabilitation program; or is actively participating in a job-retraining program; or is attending an accredited educational institution full time to pursue employment within the work restrictions (Matter of American Axle, 2010 NY Wrk Comp 80303659).
Here, the claimant testified that she conducted an independent job search to find work within her restrictions. As to the requirements for a valid independent job search, the Board has set forth the following criteria: if the independent job search is in person, documentary evidence should provide the day, month, and year of the contact; the name and address of the employer; the name and telephone number of the person with whom employment was discussed; the type of job sought; and the response of the potential employer. If the contact was written, copies of the resume submitted if any; the inquiry letter or e-mail communication; or the application completed is necessary along with the day, month, and year submitted, the nature of employment sought, name and address of the employer and the response of the potential employer. (Matter of American Axle, 2010 NY Wrk Comp 80303659).
Despite testifying that she had applied to several businesses since the date of her last paid employment, May 31, 2006, the claimant provided an ambiguous list of ten positions, most of which did not contain the names of the potential employers, and none of which included the dates on which the claimant made application thereto. There has been no permanency finding in the case. The claimant performed volunteer work in December 2007 and throughout 2008 for 20 hours per week, as a blood recruiter and receptionist, clearly demonstrating that she is capable of performing work within her restrictions.
The independent job search efforts described by the claimant are insufficient to constitute continued attachment to the labor market. (see Louman v. Premier Staffing, LLC, 12 AD3d 815 ; see also Matter of Greystone Program Inc, 2006 NY Wrk Comp 59816949; Matter of Chairmasters Inc, 2002 NY Wrk Comp 09503946). In addition, the claimant failed to avail herself of the services offered by VESID and One-Stop. Whether a claimant has reattached to the labor market and become eligible for reduced earnings benefits is a factual determination for the Board (see Matter of Rothe v United Med. Assoc., 18 AD3d 1093 ).
In sum, the Full Board finds that the claimant has met her burden in establishing a causal relationship between her back injury and her work accident of November 21, 2004. The Full Board further finds that the claimant did not reattach to the labor market subsequent to her termination on May 31, 2006.
Accordingly, the WCLJ's decision filed August 10, 2009, is MODIFIED to find that the claimant did not reattach to the labor market subsequent to her termination on May 31, 2006. The WCLJ's decision filed August 10, 2009, is otherwise affirmed.