The Full Board, at its meeting on April 17, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision duly filed and served on August 10, 2011.
The issue presented for Mandatory Full Board Review is whether the claimant reattached to the labor market on September 29, 2010.
By a decision filed October 1, 2010, the Workers' Compensation Law Judge (WCLJ) made awards from May 26, 2010, to September 29, 2010, and continuing at the marked partial rate of $214.36 per week. By a decision filed November 15, 2010, the WCLJ made awards for the period from September 28, 2010, to November 10, 2010, at the tentative partial rate of $214.36 per week and continuing.
The Board Panel majority modified the WCLJ's decisions to find that claimant had voluntarily removed himself from the labor market on September 28, 2010, but reattached to the labor market the following day, September 29, 2010.
However, the dissenting Board member would have found that the claimant made an insufficient effort to obtain employment within his restriction and thus did not reattach to the labor market on September 29, 2010.
In its application for Mandatory Full Board Review filed on September 8, 2011, the carrier argues that the claimant did not make a sufficient effort to find a job within his restrictions and, thus, did not reattach to the labor market on September 29, 2010.
In a rebuttal filed with the Board on October 11, 2011, the claimant argues that his efforts to find a job within his restrictions were sufficient to reattach to the labor market on September 29, 2010.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On November 19, 2001, the claimant, then a 36 year old stockperson at a retail store, filed a C-3 (Employee Claim) wherein he stated that he developed repetitive motion syndrome from pulling heavily laden pallet jacks and other work activity that affected his left elbow and right shoulder. The case was established for left lateral epicondylitis and right shoulder impingement syndrome/rotator cuff tendonitis with a July 19, 2001, date of disablement. The case was later amended to include a consequential injury to the claimant's left shoulder. The claimant underwent right shoulder surgeries in 2001 and 2002, and left shoulder surgery in 2003.
The claimant has a traveling file (WCB # 90300442) that was established for a January 2, 2003, accident involving the claimant's low back while working for the same employer.
Claimant has not returned to work since January 2, 2003, and has received benefits at the marked partial disability rate of $214.36 per week since March 7, 2006. He has not been classified with a permanent disability or awarded a schedule loss of use.
The percentage of temporary impairment related to the claimant's shoulders varies between 50% and 75% in the reports from the claimant's treating physician, Dr. Scheinfeld. In a report dated May 12, 2010, Dr. Scheinfeld indicated 50% as the claimant's percentage of temporary impairment. As for "restrictions," the doctor indicated "as discussed with patient." Dr. Scheinfeld's report dated August 26, 2010, does not list a percentage of temporary impairment but notes that the claimant appears to be at maximum medical improvement.
In a report dated August 2, 2010, the carrier's consultant, Dr. Simon, opined that the claimant has a 55% loss of use of the right arm and 50% loss of use of the left arm. Dr. Simon further concluded that the claimant was able to return to work-related activities which did not require prolonged sitting or standing greater than four hours per day, heavy lifting (greater than twenty-five pounds) and repetitive use and/or overhead activities involving the upper extremities.
In a report dated March 11, 2009, the carrier's consultant, Dr. Jones, also found a schedule loss of use of 55% for the right arm and 50% for the left arm.
At the hearing on September 28, 2010, the claimant testified that he attended a functional capacity evaluation as had been previously directed by the WCLJ but was not able to complete it due to prohibitively high blood pressure. He stated that he had registered with the Manpower Development/Department of Labor, but they had not contacted him regarding any job leads. He has not been contacted by the Vocational Rehabilitation Section of the Workers' Compensation Board. The claimant conceded that he had not otherwise looked for work because he takes care of his four year old grandson who has been in his custody since his daughter's death.
By notice of decision filed October 1, 2010, the WCLJ made awards for the period May 26, 2010, to September 29, 2010, and continuing, at the marked partial degree of disability rate pursuant to WCL § 25(1)(f). The claimant was referred to the Board's Vocational Rehabilitation Division for an assessment of employability and possible referral for additional assistance in vocational rehabilitation, and was directed to produce the results of a functional capacity evaluation.
At the hearing held on November 9, 2010, the claimant testified that a functional capacity examination had been scheduled for November 19th. The claimant testified further that he had contacted the Board's Vocational Rehabilitation Division and had a two hour long conversation with the VRD representative regarding job searching, information required by the Board, and VESID. The claimant stated that he went to a VESID meeting on November 5th where he acquired information regarding VESID and an application to participate in the program. The claimant testified that he has been looking for work on the internet daily and posted a resume on-line as of September 29, 2010. The claimant also regularly checks the NYS Department of Labor web site for job postings. The claimant added that he has registered with the Department of Labor's Workforce Development. The claimant stated that in the past he worked in a warehouse and for eighteen years as a cook, but is now unable to perform those jobs due to his level of pain and the narcotic pain reliever he takes three times per day. The claimant has never worked a sedentary or "desk job." The claimant was asked how many jobs he found on-line that he would be able to perform within his limitations (i.e., no prolonged sitting or standing greater than four hours per day, heavy lifting/greater than twenty-five pounds and repetitive use and/or overhead activities involving the upper extremities, no pushing, pulling, no walking uphill or downhill), and the claimant responded that he had not found any, despite looking for jobs on-line almost every day.
At the November 9, 2010, hearing, the WCLJ concluded that:
"[B]ased upon the testimony of the claimant he remains attached to the labor market. He has looked for work. He has made contact with VESID, and continues to look for work. I will note for the record that while I am not bound by a finding of the Social Security Administration, it is noteworthy that the claimant is found to be disabled by Social Security due to his compensable injuries in both these files. The claimant remains attached to the labor market within his disabilities and awards will continue."
On November 9, 2010, the claimant submitted to the Board a written record of applications/appearances at eight potential employers that he made in October 2010. In addition, on November 15, 2010, the claimant submitted verification from the Department of Labor of attendance at the One-Stop Career Center, of a referral to VESID, and referral to the Disabilities Program Navigator.
By a decision filed November 15, 2010, awards were made for the period September 28, 2010, to November 10, 2010, and continuing, at a tentative marked partial degree of disability rate, and the case was marked no further action.
The carrier requested administrative review of the WCLJ's decisions filed October 1, 2010, and November 15, 2010, arguing that claimant has not shown a sufficient attachment to the labor market to warrant further awards.
Once the Board has determined that a claimant has voluntarily removed him- or herself from the labor market, that claimant is "obligated, before obtaining a reduced earnings award, to demonstrate that he had attempted to obtain employment that took into account the restrictions caused by his disability" (Matter of Smith v Consolidated Edison, 68 AD3d 1299  [citations omitted]).
The claimant must demonstrate "that his earning capacity and his ability to find comparable employment had been adversely affected by his disability" (id. [citations omitted]). No reduced earnings award will be made unless the claimant presents "evidence that his ability to earn an income [has] been reduced because he was disabled" (id. [citations omitted]).
Here, the claimant is temporarily partially disabled. The claimant was found by the Board Panel to have voluntarily withdrawn from the labor market as of September 28, 2010, based on his failure to present sufficient evidence of labor market attachment as of the hearing on that date. Accordingly, in order to receive reduced earnings awards, he has the burden of demonstrating reattachment to the labor market by seeking employment within his medical restrictions, and for which he is qualified.
Reattachment 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).
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).
Active participation in vocational rehabilitation includes 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).
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 ).
Here, the claimant testified that on September 29, 2010, he posted his resume on-line. He testified that, since such time, he regularly checked on-line/NYS Department of Labor web site for job postings. The claimant added that he has registered with the Department of Labor's Workforce Development. The claimant submitted to the Board a written record of applications/appearances at eight potential employers that he made in October 2010. The claimant also testified that he had an in-depth telephone counseling session with a member of the Board's Vocational Rehabilitation Division. In addition, on November 15, 2010, the claimant submitted verification from the Department of Labor of attendance at the One Stop Career Center, of a referral to VESID, and referral to the Disabilities Program Navigator.
Therefore, the Full Board finds that the preponderance of the credible evidence in the record supports a finding that the claimant reattached to the labor market as of September 29, 2010, as the claimant's job search efforts satisfied the requirements set forth for same in American Axle.
Accordingly, the WCLJ decision filed October 1, 2010, is MODIFIED as follows: awards are directed for the period May 26, 2010, to September 28, 2010. The rest of the WCLJ decision remains in effect. The WCLJ decision filed November 15, 2010, is MODIFIED to mark the awards as beginning September 29, 2010. The rest of the WCLJ decision remains in effect.