The Full Board, at its meeting held on November 15, 2011, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on January 27, 2011.
The issue presented for Full Board Review is whether the claimant reattached to the labor market on May 24, 2010.
In a decision filed on June 4, 2010, the WCLJ found the claimant reattached herself to the labor market on May 24, 2010. Based upon this finding and the medical reports contained in the record, the WCLJ found no lost time from February 12, 2009, to March 24, 2010, and directed awards from March 24, 2010, to June 2, 2010, at a temporary partial disability rate of $102.91 per week with the carrier to continue payments at the same temporary partial disability rate of $102.91 per week.
The majority of the Board Panel affirmed the WCLJ's decision, finding that the claimant's testimony and written records of her job search efforts from May 24, 2010, through the date of her testimony of June 1, 2010, evidences a reattachment to the labor market as of May 24, 2010.
The dissenting Board Panel member would reverse and find that the claimant had not met the criteria for maintaining an attachment to the labor market because the claimant inquired at businesses that were not hiring, she has not been to VESID, nor has she participated in any job retraining.
In its application for Mandatory Full Board Review, the carrier asserts that the claimant failed to meet her burden of showing through substantial evidence that her inability to secure employment following her layoff on February 12, 2009, was related to her causally related disability.
In rebuttal, the claimant contends that she met her burden of showing that she had reattached to the labor market.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This case is established for occupational diseases involving the back, neck, and bilateral shoulders with a date of disablement set at April 23, 2007. The average weekly wage is fixed at $385.92. Awards were originally granted for lost time through November 10, 2007, at which time the claimant returned to work for her employer at no reduced earnings.
On January 10, 2010, the claimant filed a RFA-1 requesting awards for lost time after being laid off from work on February 12, 2009. Within the RFA-1, the claimant referred to several medical reports filed by her physicians indicating the claimant has a partial disability and that she has not been able to find work despite submitting several job applications.
At a hearing held on May 6, 2010, the claimant conceded that she was terminated from her employment on February 12, 2009, for reasons unrelated to her disability. The WCLJ continued the case to June 1, 2010, for the claimant's testimony on the issue of labor market attachment and held all awards after February 12, 2009, in abeyance.
Prior to the claimant's testimony, Dr. Gould filed a May 20, 2010 narrative report indicating the claimant has a 25 pound lifting restriction, needs to change positions every 30 minutes, and is restricted from repetitive bending, twisting, and lifting.
On June 1, 2010, the claimant testified that her employer laid her off on February 12, 2009, because of a lack of work. The claimant's prior jobs included working at Staff Works from February 2005 to May 2005 and with her last employer through February 12, 2009. The claimant produced documentation and testified about her job search efforts beginning in July 2009. In July 2009, the claimant gave her phone number to doughnut shops, coffee shops, and the post office. Additionally, the claimant submitted applications at three places of business in July 2009, Dollar General, Wal-Mart, and K-Mart. The claimant did not list or testify to any specifics regarding her job search in July 2009. The claimant filed an application at Big M Supermarket on February 14, 2010. The claimant did not perform any further job search until May 24, 2010. Between May 24, 2010, and June 1, 2010, the claimant filed applications at eight potential employers, was told by two employers that they were not accepting applications, and spoke to both of her former employers about returning to work. The claimant's documented job search lists names, addresses, and phone numbers of each potential employer and the date she submitted an application or spoke with the potential employer. The claimant has not received responses from any potential employer. The claimant also searches for work on her computer. As far as the claimant knows, she is registered with the Department of Labor, but has not been offered anything at this time. The claimant has not enrolled with any retraining service.
After the claimant testified and each party presented their verbal summations, the WCLJ found the claimant reattached herself to the labor market on May 24, 2010. Based upon this finding and the medical reports contained in the record, the WCLJ found no lost time from February 12, 2009, to May 24, 2010, and directed awards from May 24, 2010, to June 2, 2010, at a temporary partial disability rate of $102.91 per week with the carrier to continue payments at the same temporary partial disability rate of $102.91 per week. These findings were memorialized in a decision filed on June 4, 2010.
Reattachment to the labor market can be demonstrated by credible documentary evidence showing that the claimant is actively seeking work, within medical 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; 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).
Pursuant to American Axle, for a claimant to be found reattached to the labor market, the claimant must perform either an independent job search, actively participate in a job-location service, or actively participate in a vocational rehabilitation program. In this case, the claimant documented her independent job search beginning on May 24, 2010, and that she continued to search for employment within her medical restrictions through the date of her testimony on June 1, 2010. The claimant testified to and produced a documented list of jobs where she applied for employment or talked to other potential employers about a job or returning to her prior employment. This list provided the names, addresses, and phone numbers of each potential employer. In addition to applying at new places of business, the claimant contacted her former employers to see if she could return to their business. Although the claimant failed to testify about her medical restrictions, Dr. Gould's May 20, 2010 report lists several restrictions which limited the claimant's job search. As testified to and written on her documented work search list, the claimant did not apply for manual labor work.
The record does not contain any proof that the claimant submitted an application to a potential employer that was not hiring. The claimant testified that she approached two potential employers who stated they were not hiring, and based upon this information, the claimant did not submit an application for employment. All other potential employers accepted the claimant's application for employment. The claimant's testimony is supported by documentation provided at the June 1, 2010 hearing. In addition, based upon the criteria set forth in American Axle, a claimant does not have to go to VESID and/or participate in a job retraining program if they perform a documented independent job search. Pursuant to American Axle, reattachment can be found if the claimant only performs a documented independent job search; in this case, the evidence signifies the claimant adequately performed an independent job search as of May 24, 2010.
Based upon the foregoing, the Full Board finds that claimant reattached to the labor market as of May 24, 2010, and is entitled to awards from May 24, 2010, to June 1, 2010, with the carrier to continue payments at the temporary partial disability rate of $102.91 per week.
ACCORDINGLY, the WCLJ decision filed on June 4, 2010, is AFFIRMED in its entirety. No further action is planned at this time.