The Full Board, at its meeting on December 18, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed March 1, 2012.
The issue presented for Mandatory Full Board Review is whether the claimant is totally industrially disabled.
The Workers' Compensation Law Judge (WCLJ) found that claimant was not totally industrially disabled.
The Board Panel majority affirmed the WCLJ's decision, finding that the claimant is not totally industrially disabled. In reaching this conclusion, the Board Panel majority found that the claimant has not demonstrated that he is unemployable as he has language skills, reading and writing ability, and the ability to drive. The Board Panel majority also based its conclusion on the claimant's failure to meet the requirement that he must demonstrate a search for work without success pursuant to Matter of Doberstein v Fred Marshall, 37 AD2d 1024 (1971).
The dissenting Board Panel member determined that the WCLJ's decision should be reversed and a finding reached that the claimant suffers from a total industrial disability.
In his application for Mandatory Full Board Review, the claimant contends that he is totally industrially disabled based on a limited educational background, a GED diploma, a 37 year work history in a position he can no longer perform, his advanced age, the opinion of his vocational expert that he is not employable, the opinion of the Board's rehabilitation counselor that claimant is not a candidate for retraining, and the failure of the carrier to have the claimant examined by its own vocational expert.
In rebuttal, the carrier asserts that there is substantial evidence in the record to support the conclusion that the claimant is not totally industrially disabled.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This claim is established for a work-related injury to the claimant's dominant right hand that occurred on April 8, 2002, while he was employed by the employer, Interstate Brands Corporation, as a route salesperson.
By a decision filed May 7, 2007, the WCLJ directed the carrier to cease continuing awards and that claimant "produce [a] schedule loss of use report."
At a hearing held on November 29, 2007, the claimant's attorney argued that the claimant was totally industrially disabled and the carrier raised the issue of voluntary removal from the labor market and unrelated wage loss. In the resulting decision filed December 5, 2007, the WCLJ made no findings or awards and indicated that no further action was planned by the Board. Claimant requested administrative review of that decision and the Board Panel, in a decision filed on May 14, 2008, modified the WCLJ's decision to reopen the case to address the issue of schedule loss of use.
In a decision filed on September 3, 2008, the WCLJ found that claimant had a 35% schedule loss of use of the right hand, entitling him to 85.4 weeks of benefits, with 43 weeks of protracted healing period, that claimant had already received awards in excess of the schedule award, and indicated that no further action was planned by the Board. Claimant sought review of that decision.
In a decision filed on December 12, 2008, the Board Panel found that the award of a schedule loss of use of the right hand does not preclude a determination that claimant is totally industrially disabled, and restored the case to the trial calendar to further develop the record on this issue.
In a WER-17 (Vocational Rehabilitation Report) form dated February 20, 2009, a Board Vocational Rehabilitation Counselor concluded that the claimant's vocational potential is limited at this time due to complaints of pain, his limited ability to use his right hand, a lack of transferable marketable job skills, his age, his limited education, difficulty reading and writing, and the present economy.
In a RFA-1 (Claimant's Request for Further Action) filed on January 11, 2010, the claimant's attorney requested further development of the record on the issue of total industrial disability, and attached the November 23, 2009, report of the claimant's vocational expert, indicating that the claimant is unemployable.
The claimant testified at a hearing held on August 3, 2010. The claimant was born on August 24, 1943, and will turn 67 in three weeks. He worked for the employer as a route salesman for a period of thirty-seven years and his job entailed delivering bread to stores and stacking it on the shelves. He is not capable of this type of work due to his compensable right hand injury. His difficulty stemmed from dropping things and his inability to move the transport racks, some of which weighed 1000 pounds, with his hand. The claimant has not seen anyone about retraining or getting back to the job market, but did speak to someone at the Board about it a while back. He went to vocational rehabilitation with BOCES, but he was not asked to take any tests and they did not have anything for him. The claimant has a high school equivalency diploma and has worked only as a route salesman. He received Social Security Disability benefits prior to age 65, which were converted when he reached age 65. He applied for part-time employment at a local school district cleaning tables, but was informed that he was unqualified. The claimant has difficulty reading the newspaper because of certain "big words."
On cross-examination, the claimant testified that he last saw a physician with respect to his compensable right hand condition two-and-a half to three years ago. The claimant takes Advil for pain. He drove to the hearing and has not been told by a physician not to drive. He does not have any difficulty dressing himself, other than tying his shoes, which he does with his left hand. The claimant applied for the position with the school one-and-a half years ago and last worked in any capacity in 2002. He looked for work in 2002, stating that he "went to places," but did not have any records to support his contention. The claimant has no records demonstrating a search for any employment other than a letter from the school system concerning his application for the table cleaning position. He has no hobbies other than occasionally gardening and walking. His compensable right hand injury does not affect his ability to sit, walk or stand. He does not intend to return to work as he is not very good with writing and comprehending, and he just had hip replacement surgery that caused him to inform a vocational counselor that he was too disabled to look for work.
The testimony of the claimant's certified rehabilitation counselor, Andrew Pasternack, was taken at a deposition held on September 24, 2010. Mr. Pasternack testified that he is a vocational expert and professor of rehabilitation counseling at Hunter College. He has a master's degree in counseling and guidance, is an impartial vocational expert for the Social Security Administration, and a consultant for the New York State Commission on the Blind and Visually Handicapped. A certified vocational expert generally works with persons with disabilities of various kinds in order to assess their capability for employment. He saw the claimant on June 15, 2009, at the request of his attorney, and performed a comprehensive assessment, an interview and vocational testing on that date. He concluded that the claimant is not employable for his past work as a sales driver and any other occupation in the local/national economy due to his current and past workers' compensation cases. Mr. Pasternack's opinion is based on the claimant's age (65 at the time of the interview; 67 at the time of his testimony), his prior work-related injuries involving the shoulder (claimant has established claims for both shoulders and received schedule awards for a 32.5% loss of use of the left arm in 2001, and a 15% loss of use of the right arm in 2002), and his most recent work-related injury, which required the implantation of an artificial joint in his right hand, as well as a 2007 left hip replacement surgery. The claimant's right hand injury caused difficulty with writing, phone grasping, buttoning buttons and tying shoe laces. The claimant also has difficulty sleeping due to all of his injuries, which necessitates that he nap during the day. The claimant could stand for sixty minutes and sit for five hours with intermittent pain in his hips. He could climb stairs with pain in his hips. He could lift five pounds with his right hand compared to ten pounds in his left hand. He would drop things from his right hand due to weakness, and cold, damp weather caused an increase in the soreness in the claimant's hips. The claimant was taking various medication due to urinary problems, hypertension, and a hiatal hernia. The extent of the claimant's education was a high school diploma, and his work history consisted only of work as a sales route driver. The claimant received a score in the 30th percentile for the verbal comprehension test. In a test of basic numerical ability, the claimant achieved a score in the 20th percentile. The claimant achieved a score in the fifth percentile for the normal repetitive group. The claimant achieved a score in the 20th percentile for clerical daily ability. The claimant achieved a score in the 10 percentile for the office skills test form. The claimant achieved a score in the first percentile for employee aptitude survey for manual speed and accuracy that measures eye/hand coordination. The claimant achieved a score in the tenth percentile for the vocational aptitude battery manual dexterity test, after which the claimant complained of pain in his right hand and wrist and fatigue in his right hand. The claimant achieved a test in the thirtieth percentile for the group peg board test, which assesses fine grasping and manipulation, for the right hand, and a score in the 38th percentile for his non-dominant left hand. The claimant experienced swelling, pain and fatigue in the right hand after this test was administered. The claimant was asked to perform the weight carry test with a 4.4 pound weight and was one-and-a half times slower than an able bodied person, and the grip strength test also demonstrated a weakness in his right hand. The overall testing demonstrated that the claimant is incapable of any vocational capability and is precluded from doing any type of work because of his injuries. The claimant was making an honest effort to complete the tests he was administering. The claimant has a very limited capability in both English and Math.
On cross-examination, Mr. Pasternack stated that he reviewed only the claimant's medical records subsequent to his 2002 date of accident, and that the medicals he reviewed included those involving the shoulder and the hip. His report was not prepared in connection with the claimant's Social Security claim. The claimant informed him that he was able to drive to some degree as of June 2009, but that the claimant reported that he has difficulty with some activities of daily living, including the tying of his shoes, which necessitated the purchase of shoes with Velcro straps. The claimant was able to walk at least two miles at a time and did so on the advice of his doctors. Mr. Pasternack did not note the use of an assistive device such as a cane. The claimant was able to do some limited reading and writing as part of his sales route job for a period of 35 years. The claimant was able to return to work following three surgeries to both of his shoulders. The claimant did not make any attempt to find work as he is precluded from working. Mr. Pasternack is of the opinion that there is no work that the claimant could do as the result of his overall condition, and he could not provide an opinion as to the claimant's employability based solely on his right hand condition.
At a hearing on January 10, 2011, the parties provided oral summations, after which the WCLJ found that claimant was not totally industrially disabled. That finding is reflected in a decision filed January 13, 2011, in which the WCLJ stated that the totality of the evidence submitted by the claimant does not constitute sufficient proof of unemployability to warrant a finding of total industrial disability, noting that the claimant has language skills, reading and writing ability and the ability to drive. The WCLJ denied the claimant's application for total industrial disability, closed the case on prior findings and awards and directed no further action.
"A claimant who suffers from a permanent partial disability may be classified as totally industrially disabled if the limitations imposed by the compensable injury, coupled with factors such as a limited educational background and work history, render him or her incapable of gainful employment" (Matter of Kucuk v Hickey Freeman Co., Inc., 78 AD3d 1259  [internal quotation marks and citations omitted]). In order to find a total industrial disability, the Board must not only have medical evidence of a disability, but also some evidence that the claimant has made a reasonable attempt to secure employment, without success, outside the scope of his or her previous employment (see Matter of Marcus & Wiesen Inc., 2011 NY Wrk Comp 09816749; Matter of McDonalls Restaurant, 2010 NY Wrk Comp 00534906; Matter of Bloomingdales, 2000 NY Wrk Comp 09304795). "Whether a total industrial disability exists presents a question of fact for the Board to resolve and its determination will be upheld if supported by substantial evidence" (Kucuk, 78 AD3d 1259  [internal quotation marks and citations omitted]).
The Full Board finds, upon review of the evidence of record, that the claimant is totally industrially disabled. The claimant is presently 69 years of age, has a 35% schedule loss of use of his dominant right hand, has work-related injuries to both of his shoulders, underwent a hip replacement, has a limited educational background, and a limited occupational history of working only as a route salesman for nearly four decades with one employer. The claimant can no longer work at that job due to his compensable right hand injury. The claimant was examined by certified rehabilitation counselor Andrew J. Pasternack, who opined that the claimant is "incapable of any vocational capability" and is precluded from doing any type of work because of the cumulative effect of his injuries. Mr. Pasternack testified in great detail with respect to his testing results, indicating that the claimant has significant limitations with respect to verbal comprehension, basic math, clerical ability and office skills. The carrier failed to produce any contrary evidence indicating that the claimant is employable in any capacity, offering only allegations of claimant's employability based on his ability to drive, dress himself, and sit and stand for defined periods. In Matter of Doberstein, the Appellate Division explicitly concluded that in order for the Board to find a total industrial disability, the claimant must attempt to secure, without success, some other employment, or the medical evidence must indicate that he was completely unable to return to any employment (emphasis supplied). While the opinion of Mr. Pasternack is not strictly "medical evidence," it does credibly indicate that the claimant is unemployable with respect to all types of employment based on claimant's combined physical disabilities and his vocational limitations.
Accordingly, the WCLJ decision filed on January 13, 2011, is REVERSED. The Full Board finds that the claimant is totally industrially disabled. Awards from January 10, 2011, forward are modified to the total disability rate of $400.000 per week. No further action is planned by the Board at this time.