The Full Board, at its meeting held on April 17, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on May 26, 2011.
The issues presented for Mandatory Full Board Review are:
In a reserved decision filed on March 10, 2010, the Workers' Compensation Law Judge (WCLJ) found that as of July 24, 2009, the claimant's employment ceased for reasons unrelated to her work-related injuries; found that the claimant reattached herself to the labor market as of August 1, 2009, which is the date of the first documentation of her search for work within her medical restrictions; made awards for the period from August 1, 2009, to March 8, 2010, at the temporary partial rate of $550.00 per week; and awarded a fee in the amount of $1,800.00 to the claimant's attorney.
In a memorandum of decision filed May 26, 2011, the Board Panel majority modified the WCLJ's decision, finding that the claimant failed to establish that she reattached to the labor market after leaving the labor market on July 23, 2009. The Board Panel majority rescinded the awards made by the WCLJ to the claimant and the fee to her attorney.
The dissenting Board Panel member would have modified the WCLJ's decision to make awards for the period from August 19, 2009, to March 8, 2010, and continuing, at the temporary partial rate of $550.00 per week. The dissenting Board Panel member found that the claimant reattached herself to the labor market as of August 19, 2009, when she began participation with Worldwide Travel Staffing.
In her application for Mandatory Full Board Review filed on June 15, 2011, the claimant requests that the WCLJ's findings be reinstated. The claimant argues that she did not voluntarily remove herself from the labor market when she was terminated by her employer on July 23, 2009, because she has been fighting for the reinstatement of her employment. She also argues that subsequent to being terminated, she has made a good faith effort to find work within her restrictions.
In a rebuttal filed with the Board on June 29, 2011, the attorneys for the self-insured employer (SIE) request that the Board Panel majority decision be affirmed because the claimant failed to establish that she reattached herself to the labor market, and she remains voluntarily removed from the labor market.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This claim is established for injuries to the neck, low back, and right shoulder suffered by the claimant, a psychiatric nurse, on June 14, 2009, when she was attacked by a patient.
In a decision filed on November 20, 2009, the WCLJ found no medical evidence for the period from June 14, 2009, to June 16, 2009; made awards for the period from June 16, 2009, to July 6, 2009, at the temporary total rate of $550.00, with a direction to reimburse the employer; found no compensable lost time for the period from July 6, 2009, to July 24, 2009; held awards in abeyance for dates subsequent to July 24, 2009; directed the parties to obtain medical testimony from Dr. Pasier, the claimant's treating chiropractor; and continued the case for the testimony of the claimant, and one employer witness.
The claimant testified at the hearing held on December 17, 2009, that she lost time after the accident but returned to work on July 6, 2009. After her return to work, she could not restrain a person, which was one of the requirements of her job as a psychiatric nurse. When she was released to return to work, she was examined by Employee Health, and she reported to that person that she was still having pain in her shoulder and back. However, she made no complaints to anyone at the worksite. She was terminated from her employment on July 23, 2009, and the reason her employer gave was "time and attendance." If she had not been terminated, she would have continued working for the employer in some capacity other than as a psychiatric nurse. Prior to her termination from the employer, she had requested a transfer to other areas of the hospital: the Post-Anesthesia Care Unit, and the Observation Unit. After being terminated, she looked for work beginning on August 1, 2009, and she documented her work search efforts. She also applied to VESID on November 16, 2009. She is scheduled to go to orientation at VESID on January 22, 2010. Although the claimant stated that she had requested a transfer to either the Post-Anesthesia Care Unit or the Observation Unit prior to her termination, she also testified that the first jobs she applied for after being terminated were at the employer's Post-Anesthesia Care Unit and Observation Unit (see Hearing Transcript, 12/17/09, p. 13 and pp. 22-23). It is her understanding that she would still be eligible for those jobs even though she had been terminated. She did an employment orientation at the Buffalo Employment and Training Center. She has been looking for work online, and at the Buffalo Employment and Training Center; she has not seen anything in the paper that would comply with her restrictions. She looks for work a couple times per week. She has also filed a grievance to try to get her job back with the employer. She applied to Worldwide Travel Staffing, which is an agency that finds work for travelling nurses. At Worldwide, she completed an online application, medical tests, and an age competency test. On the job search list, she only listed jobs that she submitted applications for. In the period from July 24, 2009, to the hearing date, she applied for about ten jobs. She interviewed for a job at a hospital emergency room through Worldwide. She did not get the job because her experience did not meet the qualifications of the job. She applied for some jobs in New Mexico, but has not been asked to interview for those jobs.
The employer's Behavioral Nurse Case Manager testified at the hearing held on December 17, 2009, that the claimant was using sick time in conjunction with scheduled time off, which is against the employer's guidelines. The claimant also had excessive tardiness. For time and attendance problems, there is a progressive disciplinary process that is followed. If there is no improvement, the last step is termination.
A "Job Search Log" was submitted to the Board on December 17, 2009 (ECF Doc ID #160432919), and lists the claimant's work search efforts as follows: She contacted her former employer for a position in either the Post-Anesthesia Care Unit, or the Observation Unit on one date; she contacted either her union or an attorney in pursuit of a grievance against her employer for wrongful termination on 19 dates; she contacted the Buffalo Employment and Training Center on three dates; she contacted the Erie Community College One-Stop employment center, which provides job search assistance, on four dates; she contacted VESID on three dates; she contacted Worldwide Travel Staffing on six dates; and she either applied for or followed up about work at seven different employers on 17 dates.
Dr. Pasier testified by telephone deposition on December 29, 2009, that he released the claimant to return to work without restrictions as of July 6, 2009, because the claimant had indicated her desire to return to work and her belief that she could perform her job duties. He treated the claimant shortly after she returned to work and noted that the claimant's symptoms worsened due to her work activities from mild to moderate-to-severe. Although he filed medical reports that indicate that the claimant has a total disability, he clarified in his testimony that the claimant was only totally disabled from performing her regular duties and partially disabled for all work. However, due to the severity of the pathology in the claimant's cervical spine, the herniations in her lumbar spine, and the tear in her right rotator cuff, the claimant probably should not have returned to work (Deposition Transcript, 12/29/09, pp. 30-31). As of his last examination of the claimant, she had an 80% impairment regarding her ability to perform her work duties, though he conceded that he reached this conclusion without the use of the Board's Medical Guidelines. The claimant's work restrictions included no lifting more than 20 pounds, no climbing, no repetitive twisting, bending, kneeling or restraining of patients. The claimant is capable of sedentary work only with the flexibility to change positions frequently.
The parties submitted memoranda of law and in a reserved decision filed on March 10, 2010, the WCLJ found that the claimant is not entitled to benefits from July 24, 2009, to August 1, 2009. The WCLJ explained that as of July 24, 2009, the claimant's employment was terminated for reasons unrelated to her work-related injuries. However, the WCLJ made awards for the period from August 1, 2009, to March 8, 2010, at the temporary partial rate of $550.00 per week. The WCLJ found that the claimant was entitled to awards for that period because she had provided documentation of a search for work within her medical restrictions as of August 1, 2009. The WCLJ awarded a fee in the amount of $1,800.00 to the claimant's attorney, pending receipt and approval of an OC400.1 form.
Termination from Employment
Pursuant to WCL § 23 and 12 NYCRR 300.13(a), an application for administrative review of a WCLJ decision must be filed with the Board within 30 days after notice of filing of the WCLJ decision. Pursuant to 12 NYCRR 300.13(e)(1)(i), the Board Panel may deny review where the completed application for review was not timely filed with the Board within the 30-day period set forth in 12 NYCRR 300.13(a).
Here, the WCLJ found that the claimant's termination from her employment was a voluntary removal from the labor market because she was terminated for reasons unrelated to her work-related injuries. The claimant failed to file a timely application for administrative review of this decision.
Therefore, to the extent that the claimant disagrees with the WCLJ's finding that her termination was a voluntary removal from the labor market, the Full Board denies the claimant's untimely request for review of that decision.
Work Search Efforts
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 her medical restrictions (Matter of Sanchez v Consolidated Edison Co. of N.Y., Inc., 40 AD3d 1153 ) and for which she is qualified (see Matter of St. Francis Constr. Co., 2009 NY Wrk Comp 30705539).
In her request for Mandatory Full Board Review, the claimant does not disagree with the WCLJ's finding that she has a partial disability, and therefore is required to look for work within her restrictions.
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; 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; 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).
Whether a claimant actually maintains an attachment to the labor market sufficient to justify continued compensation benefits is a factual determination for the Board to resolve (Matter of Rothe v United Medical Associates, 18 AD3d 1093 ).
The claimant has documented that during the period from August 1, 2009, to December 14, 2009, she contacted seven employers. She also reported that she has contacted the Buffalo Employment and Training Center on several occasions beginning August 18, 2009, and contacted VESID on November 16, 2009. In addition, she applied to Worldwide Travel Staffing, which is an agency that finds work for travelling nurses, on August 19, 2009. She also completed an online application, medical tests, and an age competency test at Worldwide, and followed up with them regarding potential jobs on several occasions. Finally, the record reflects that claimant contacted the Erie Community College One-Stop employment center (One-Stop) on September 18 and 25, 2009, and applied for positions at One-Stop on November 18 and 20, 2009.
Therefore, the Full Board finds that the totality of claimant's job search efforts, as reflected in the record, shows a sufficiently diligent and persistent effort by the claimant to obtain employment consistent with her disability to find that she has reattached to the labor market.
Accordingly, the WCLJ reserved decision filed March 10, 2010, is AFFIRMED. No further action is planned by the Board at this time.