The Full Board, at its meeting held on December 18, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum filed on February 21, 2012.
The issue presented for Mandatory Full Board Review is whether the group self-insured trust (GSIT) submitted sufficient evidence to support reopening the case on the issue of voluntarily withdrawal or attachment to the labor market.
The Board Panel majority found that the GSIT failed to provide sufficient evidence to warrant reopening the case, noting that "[o]nly providing copies of letters and forms sent to the claimant's attorney and alleging that failure to reply to the request for job search information or to allow the claimant to meet with their vocational rehabilitation specialist equate to a finding of voluntary withdrawal from the labor market are insufficient standing alone to overcome the inferences afforded a [permanently partially disabled] claimant…"
The dissenting Board Panel member found that the claimant's refusal of vocational rehabilitation services was sufficient evidence to support reopening the case to consider whether the claimant had maintained sufficient attachment to the labor market.
In its application for Mandatory Full Board Review, the GSIT argues that it has made every possible effort to assist the claimant in locating employment, but its efforts have been refused. The GSIT requests that the Full Board adopt the opinion of the dissenting Board Panel member and reopen the case for consideration of whether the claimant has remained attached to the labor market.
In rebuttal, the claimant argues that she left work the day of the accident and has not returned and therefore, she is entitled to the presumption that her loss of earnings is causally related to her disability. The claimant further argues that, because her permanent partial disability benefits are subject to a cap under WCL § 15, she is not required to demonstrate labor market attachment or accept the GSIT's offer of vocational services during the period when awards are available.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, a certified nursing assistant, has an established claim for back and neck injuries arising out of a work accident on July 26, 2007. In a Notice of Decision filed July 14, 2010, the Workers' Compensation Law Judge (WCLJ) found the claimant to suffer from a permanent partial disability with a 60% impairment and loss of wage earning capacity.
On December 7, 2011, the GSIT filed a Form RFA-2 (Request for Further Action by Carrier/Employer) requesting that the case be reopened based upon evidence of the claimant's failure to remain attached to the labor market. In support of the GSIT's application, it submitted copies of letters dated February 9, 2011, April 20, 2011, and July 13, 2011 to the claimant's attorney and copied to the claimant, requesting information regarding the claimant's job search efforts. The GSIT also submitted the November 30, 2011 report of its contractor, Managed Care Network, Inc. (ContractorContractor). The report indicates that the Contractor contacted the claimant's attorney to offer vocational services to the claimant, but the offer was refused. The Contractor states that it did not receive written denial from the claimant's attorney, but sent a letter to the claimant's attorney confirming that the offer of vocational services was denied. The report also includes a transferrable skills analysis, based upon a copy of the claimant's resume included in the employer's personnel file, and a labor market survey, identifying open positions within the claimant's limitations.
With respect to claims in general, 12 NYCRR 300.14 allows for the "rehearing or reopening of a claim" based upon an application which makes one of three contentions: that certain material evidence was not available at the time of the hearing, there has been a change in claimant's condition material to the issue involved, or it is in the interest of justice.
On the other hand, 12 NYCRR 300.23(c)(1) specifically pertains to cases, like the instant one, which have been closed upon a finding of a permanent partial disability (PPD) and the carrier is seeking a suspension of benefits. As to such post-classification reopening, the regulation provides in part:
"[i]n any case where the board has made an award for compensation for a … permanent partial disability, payments shall not be suspended or modified until an application on a prescribed form accompanied by supporting evidence, is made to reconsider the degree of impairment or wage-earning capacity together with proof of mailing of copies thereof upon the claimant, his/her doctor and his/her representative and the board has made a final determination of such application, finding that such suspension or modification is justified…"
(12 NYCRR 300.23[c] emphasis added).
In the present case, the GSIT submitted evidence indicating that the claimant, through her attorney, refused the Contractor's offer of vocational rehabilitation assistance, and has failed to provide any evidence that she has engaged in any job search activities. The Board has previously held that a claimant's failure to respond to an employer's offer of retraining or job search assistance is sufficient evidence to justify reopening of a case (Matter of H.O. Welding Trucking, 2012 NY Wrk Comp G0217331).
Additionally, the claimant's argument that she is not required to look for work while receiving permanent partial disability benefits because those benefits are subject to a time limitation is without merit. The Court of Appeals has held that "a central question for the Board to resolve, before awarding wage replacement benefits in a nonscheduled permanent partial disability case, is whether a claimant has maintained a sufficient attachment to the labor market. By finding alternative work consistent with his or her physical limitations, or at least showing reasonable efforts at finding such work, the claimant can prove to the Board that the cause of his or her reduced income is a disability, rather than unwillingness to work again. Claimant must demonstrate that his or her reduced earning capacity is due to the disability, not … factors unrelated to the disability" (Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 [internal citations and quotation marks omitted]). There is no authority to support claimant's contention that a permanently partially disabled claimant's obligation to look for work is abrogated when the claimant's benefits are limited to certain number of weeks pursuant to WCL §15(3)(w).
Therefore, the preponderance of the evidence in the record supports a finding that the case should be reopened to consider whether the claimant has remained attached to the labor market.
ACCORDINGLY, based upon a review of the evidence submitted with the RFA-2 and a preponderance of the evidence in the record, the GSIT's application to reopen is GRANTED. The case is reopened and returned to the calendar for further proceedings.