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 6, 2011.
The issue presented for Full Board Review is whether the claimant remained attached to the labor market.
In a Notice of Decision (NOD) filed on September 8, 2009, the WCLJ found that the claimant was attached to the labor market and made awards from December 12, 2008, forward.
In a Memorandum of Decision (MOD) filed April 6, 2011, the Board Panel majority affirmed the WCLJ's decision.
However, the dissenting Board member found insufficient attachment to the labor market.
In the carrier's application for Mandatory Full Board Review filed on May 3, 2011, it argues that the claimant has not maintained an attachment to the labor market.
In a rebuttal filed with the Board on May 25, 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 January 13, 2004, claimant, then a 27 year old janitor, sustained a work related injury to his shoulder. This case was established for the claimant's right shoulder. The claimant has undergone two causally related surgeries on his right shoulder, namely, a right shoulder arthroscopy in November 2004 and a repeat of the same surgery in November 2007.
In a medical narrative report dated February 3, 2009, the carrier's consulting orthopedist, Dr. Miller, opined that the claimant has a causally related mild partial disability. (see Document I.D. No. 149018137, filed 2/11/09). Dr. Miller noted that the claimant had not resumed working since the date of his accident.
In a form C-4.3 report (Doctor's Report of Maximum Medical Improvement/Permanent Impairment) dated June 23, 2009, the claimant's treating physician, Dr. Scilaris, opined that the claimant has a marked partial disability that is permanent. (see Document I.D. No. 154231836 filed 6/29/09). However, the report does not provide a basis for this opinion. Dr. Scilaris also noted that the claimant was not working. The report did not list work limitations but indicated that work limitations had been discussed with the claimant.
The claimant has not been classified permanently partially disabled. The doctors have not been deposed nor has the WCLJ directed the deposition testimony of the doctors.
At the hearing held on September 2, 2009, the claimant testified that he has a high school education and has been working in the construction and maintenance fields his entire adult life. His physician cleared him to return to light duty work, with a lifting restriction of either 5 or 10 lbs. He is right handed and does not have full use of his right arm. The claimant further testified that he has been "constantly looking for work" within his doctor's restrictions. (Hearing transcript, 9/2/09 p. 4). The claimant had prepared a resume. The claimant stated that he applied for work at four or five businesses, including positions at the Department of Mental Health, Staples and Home Depot. (Hearing transcript, 9/2/09 pp. 5-7). The claimant further testified that he applied to Home Depot in person hoping that his knowledge of the products would lead him to a job in sales. The claimant did not have any documentation pertaining to his search for work. The claimant had not sought the assistance of vocational rehabilitation services/VESID. The WCLJ asked the claimant when he last looked for work, the claimant answered, "April and May…of this year…'07 it was only one time and then the last three or four applications were in the recent year or the year before." (Hearing transcript, 9/2/09, p.13).
By NOD filed September 8, 2009, the WCLJ awarded claimant benefits from December 12, 2008, to September 3, 2009, at the rate of $213.33 per week and directed the carrier to continue payments at that same weekly rate. The WCLJ found further that the claimant had not voluntarily withdrawn from the labor market. The WCLJ also referred the claimant to vocational rehabilitation.
In a report dated September 23, 2009, a counsel in the Board's Rehabilitation Bureau wrote that claimant had "expressed an interest in job retraining," and was therefore referred to VESID. However, there is no evidence in the record indicating that claimant participated with VESID.
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).
Here, the claimant is temporarily partially disabled. While the June 23, 2009, report of Dr. Scilaris indicates that the claimant has a marked partial disability that is permanent, the report also indicates that work limitations had been discussed with the claimant. This is corroborated by the claimant's testimony that he had discussed his work limitations with his doctor. 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 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).
The claimant did not offer any documentary evidence in connection with his independent job search. Even if he was able to provide documentary evidence of his search, the search effort made by the claimant can hardly be described as "timely, diligent, and persistent." Here, the claimant failed to apply for any job in the four months prior to the September 2, 2009, hearing. In the two years prior thereto, since being cleared by his doctor to return to work on light duty basis, the claimant testified that he had applied for work "constantly." When asked to specifically identify how many jobs he had applied for he answered, "four or five" and that he had last looked for work in April and May of 2009; he applied for one job in 2007, and made three or four applications in 2008-2009. Four or five job applications in the span of two years hardly seems constant and certainly does not fit within the realm of "timely, diligent and persistent."
The claimant argues that due to his limited education and work experience, it is virtually impossible for him to obtain a job because suitable prospective employers are hesitant to give the claimant a job until he is fully cleared by his doctor to work. While it is true that the claimant is high school graduate with heavy duty work experience only (i.e., construction and maintenance), it is also true that at the time of his testimony, the claimant had made no effort to seek job retraining or solicit the help of any job placement agencies or services, such as VESID, One-Stop Career Centers.
The claimant's efforts with respect to his independent job search have fallen short of the "timely, diligent, and persistent" standard set forth in American Axle. In addition, the claimant failed to avail himself of the services offered by VESID and One-Stop.
Accordingly, the Full Board concludes that the claimant voluntarily withdrew from the labor market. Claimant may, of course, come forward with evidence that he has reattached to the labor market consistent with American Axle.
Accordingly, the WCLJ's decision filed September 8, 2009, is REVERSED. No further action is planned by the Board at this time.