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 March 18, 2011.
The issue presented for Full Board Review is whether the claimant is attached to the labor market.
In a Notice of Decision (NOD) filed on November 12, 2010, the WCLJ found that the claimant was attached to the labor market.
In a Memorandum of Decision (MOD) filed March 18, 2011, the Board Panel majority affirmed the WCLJ's decision.
However, the dissenting Board member found insufficient attachment to the labor market for the period at issue.
In the carrier's application for Mandatory Full Board Review filed on April 11, 2011, it argues that there is insufficient evidence in the record to support the conclusion that the claimant was "actively" involved with either VESID or One-Stop. The carrier also argues that the claimant has not produced detailed evidence of an active and sufficient independent job search.
In a rebuttal filed with the Board on May 10, 2011, the claimant argues that he has made sufficient efforts to remain attached to the labor market.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On March 24, 2009, claimant, then a 56-year-old truck driver and deliveryman, was injured when he tripped and fell while making a delivery of heating oil at a customer's residence. This case was established for injuries to the claimant's right wrist and left knee, and later amended to include right carpal tunnel syndrome.
Per the August 11, 2010, report of the carrier's consultant, Dr. Nunez, an orthopedic surgeon, the claimant has a causally related marked degree of disability. Dr. Nunez noted that the claimant was still not working and had not worked since March 26, 2009. Dr. Nunez opined that the claimant could return to work in a light duty capacity with a lifting restriction of no more than five pounds; no prolonged lifting; and no prolonged walking.
Per the September 27, 2010, report of the claimant's treating physician, Dr. Reddy, a physical medicine and rehabilitation specialist, the claimant has a temporary marked partial disability. The report does not mention work restrictions.
The claimant has not been classified permanently partially disabled. On July 22, 2010, the carrier filed a form RFA-2 requesting a hearing on the issue of voluntary removal from the labor market, indicating that job search letters had been sent to the claimant without return.
At the hearing held on November 8, 2010, the claimant testified that he was almost 58 years old and had a high school education with a few months of college. After leaving college, the claimant joined the National Guard. He served in the National Guard for six years, where his occupational specialty was artillery. The claimant testified that since the last hearing in June 2010, where he testified that he had been to VESID and One-Stop,, he had returned to both VESID and One-Stop to seek assistance in his search for work (the minutes of the June 30, 2010, hearing have not been transcribed). At VESID, he was told that until he was "done with Workers' Compensation there is nothing they can do for me," and that "as long as you are involved with Workers' Compensation they will not do anything with you." (Hearing transcript 11/8/10, p. 3). At One-Stop, he was told "if you have a computer at home it is the same thing you do here." (id.). The claimant testified that he has searched for work using his computer at home, but had trouble doing so. He has looked for work in the Poughkeepsie Journal, the Hudson Valley Help Wanted, and the Penny Saver. The claimant further testified that he has not submitted a job application since he last testified in June nor has he had an interview since then, despite making several phone calls and in-person inquiries at hospitals in the area. Reference is made in the hearing transcript to a list of contacts that the claimant submitted in connection with his job search. However, he testified that has not documented anything with respect to his job search efforts since June 28, 2010. (Hearing transcript 11/8/10, p. 9).
There is no documentary evidence in the record reflecting claimant's participation at VESID or One Stop.
By NOD filed November 12, 2010, the WCLJ awarded claimant benefits from October 12, 2010, to November 8, 2010, at the rate of $405.43 per week and directed the carrier to continue payments at that same weekly rate. The WCLJ found further that the claimant was currently attached to the labor market.
A claimant who is temporarily partially disabled must also 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).
Here, for the time period in question, the claimant was temporarily partially disabled. Accordingly, he had the burden of demonstrating an attachment to the labor market by seeking employment within his medical restrictions, and for which he was qualified.
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 in his attempt to find employment within his restrictions, he sought the assistance of One-Stop (a service run by the Department of Labor offering counseling and job matching) as well as VESID (the Vocational and Educational Services for Individuals with Disabilities). In the American Axle decision, the Board indicated that documentary evidence of "active participation" in One Stop services constitutes an attachment to the labor market. Active participation at a One-Stop Career Center means calling for an appointment, attending an orientation session; meeting with a One-Stop counselor to develop a resume, registering a resume in the One-Stop system, maintaining contact with the One-Stop Career Center to determine whether there were any job matches, and following up on all job referrals and matches (id). Similarly, documentary evidence of voluntary, active and continued participation in VESID is valid evidence of attachment to the labor market.
The claimant also testified that he conducted an independent job search to find work within his 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).
Here, the claimant has not offered any documentary evidence with respect to his participation with VESID and One-Stop. The claimant's testimony that both entities told him there was nothing they could do for him is insufficient to prove that claimant made a good faith effort to remain attached to the labor. In order for the Board to entertain the argument that a failure to actively participate in VESID/One Stop should be excused because of their refusal to provide services, the claimant must subpoena an official of the VESID/One Stop center and elicit testimony that claimant was in fact refused services.
Moreover, while the claimant testified that he looked through newspapers and made some inquires at local hospitals, he offered no documentary evidence of his independent job search, but instead testified that he had not kept a log or any type of documentation with respect to his job search efforts since June 2010. The independent job search efforts described by the claimant are insufficient to constitute continued attachment to the labor market. (Id.).
The claimant's efforts with respect to "active participation" with VESID and One-Stop as well as his independent job search have fallen short of the standard set forth in American Axle. Accordingly, the Full Board concludes that the claimant voluntarily withdrew from the labor market.
Accordingly, the WCLJ's decision filed November 12, 2010, is REVERSED. No further action is planned by the Board at this time.