Case # G0002609
Date of Accident: 11/28/2008
District Office: Hempstead
Employer: Labor Ready
Carrier: Pacific Employers Ins. Co.
Carrier ID No.: W167001
Carrier Case No.:
Date of Filing of Decision: 09/10/2012
Claimant's Attorney: Klee & Woolf LLP
Panel: Robert E. Beloten

The Full Board, at its meeting held on July 17, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed October 13, 2011.

ISSUES

The issues presented for Mandatory Full Board Review are:

1. whether it was premature for the Board Panel to make a decision on the issue of attachment to the labor market; and
2. whether there is sufficient evidence of the claimant's attachment to the labor market.

In a decision filed on November 15, 2010, the Workers' Compensation Law Judge (WCLJ) amended the claim to include consequential mild depression; found that the claimant did not remove himself from the labor market; noted that the claimant had raised the issue of total industrial disability; and continued the case for a decision on the issues of further causally related disability and awards.

The Board Panel majority agreed, finding that "the claimant suffers from a causally related consequential depression and that the claimant remains attached to the labor market."

The dissenting Board Panel member would have found "that the claimant has not provided credible and sufficient evidence of reattachment to the labor market."

On November 11, 2011, the carrier for the employer Labor Ready filed a request for Mandatory Full Board Review.

On November 14, 2011, the carrier for the employer Wal-Mart filed a request for Mandatory Full Board Review.

The claimant filed a rebuttal on December 8, 2011.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

The claimant filed a Form C-3 (Employee Claim) on December 16, 2008, to report that he was injured on November 28, 2008, while working for Labor Ready as a shipping/receiving clerk at Wal-Mart. The claimant alleged that he injured his back, neck, left shoulder, and right leg when he was caught in a crowd and was helping a co-worker who had been trampled by the crowd, and later died. The claimant also alleged that he has post-traumatic stress disorder (PTSD).

The record contains evidence of the claimant's treatment for his physical injuries on December 10, 2008, December 17, 2008, and December 23, 2008.

Dr. Zimmerman, Pacific's consulting orthopedic surgeon, submitted an IME-4 report of an examination on February 10, 2009, finding that the claimant was not in need of any treatment, has no disability, has reached maximum medical improvement, and can return to work without restrictions.

In a decision filed on March 23, 2009, the WCLJ established the claim for injuries to the neck, back, left shoulder and right leg, and made awards for the period from December 17, 2008, to December 23, 2008, at the tentative rate of $367.73 per week, and for the period from December 23, 2008, to February 10, 2009, at the tentative rate of $200.00 per week. Awards after February 10, 2009, where held in abeyance.

In a decision filed on April 29, 2009, the claimant was directed to produce medical evidence for additional sites claimed and further causally related disability.

Dr. Ritholtz, Pacific's chiropractic consultant, submitted an IME-4 report of an examination of the claimant on July 22, 2009, in which he found that no further chiropractic care is needed, and found no disability from a chiropractic standpoint.

In a decision filed on October 23, 2009, the claimant was referred for a vocational rehabilitation evaluation.

In a decision filed on November 20, 2009, the WCLJ directed the claimant to produce medical evidence for all periods of causally related lost time.

On November 23, 2009, the Board received an EC-4NARR report of the claimant's treatment with Dr. Amatulli, his treating chiropractor, on dates between April 25, 2009, and May 2, 2009. In an attached narrative report, Dr. Amatulli noted the history of a work injury on November 28, 2008, and noted the claimant's complaints of neck pain radiating into the left arm, headaches, bilateral shoulder pain, low back pain radiating into the left leg with numbness and tingling, and depression. Dr. Amatulli opined that the claimant's injuries are causally related to the accident on November 28, 2008, and found that the claimant was totally disabled. On several subsequent dates of examination between May 4, 2009, and November 1, 2010, Dr. Amatulli continued to opine that the claimant was totally disabled.

Dr. Marcus, the claimant's treating orthopedic physician, submitted reports of examinations on dates between December 7, 2009, and April 16, 2010, and opined that the claimant has a 100% temporary impairment.

By a decision filed March 15, 2010, the WCLJ directed the parties to depose Drs. Marcus, Amatulli, Zimmerman and Ritholtz, who were subsequently deposed in April 2010.

Dr. Hirsch, the claimant's treating psychologist, submitted a C-4 report of an examination of the claimant on March 23, 2010. In a narrative report of the examination, Dr. Hirsch noted that the claimant was being evaluated for symptoms of PTSD. The claimant presented as angry and depressed, and he reported that he continues to have difficulty with crowds, and that he has frequent flashbacks. Dr. Hirsch diagnosed dysthymic disorder, and psychological problems secondary to the claimant's physical condition (which may also exacerbate the physical problem). Dr. Hirsch opined that the accident in November 2008 is the competent cause of the claimant's present emotional distress, and he is in need of psychotherapeutic intervention.

In a decision filed April 14, 2010, the WCLJ found general-special employment, Labor Ready, 50% responsible, and Wal-Mart, 50% responsible, and again referred the claimant for a vocational rehabilitation evaluation.

Dr. Rubinstein, Pacific's psychiatric consultant, submitted an IME-4 report of an examination on July 20, 2010, and noted the history of the accident at work on November 28, 2008. Dr. Rubinstein further noted that he had reviewed Dr. Hirsch's diagnoses, as well as the medical records of the claimant's physical condition. Dr. Rubinstein found no evidence of mood or affective disorder, no dysphoria, no evidence of anxiety or depression, no evidence of agitation or restlessness, no sadness, and no objective mental status findings. Dr. Rubinstein found no evidence of any accident-related psychiatric disorder, and found that any difficulties that the claimant has pre-existed the accident. Dr. Rubinstein specifically noted that the claimant has been taking psychotropic medications for many years prior to the incident. According to Dr. Rubinstein, the claimant needs no psychiatric or psychological treatment related to the incident at work.

In a decision filed on September 3, 2010, the WCLJ directed the parties to depose Drs. Rubinstein and Hirsch, and again referred the claimant for a vocational rehabilitation evaluation.

On September 22, 2010, Dr. Rubinstein testified that the claimant reported that he had been treating with a mental health provider for years, but the claimant would not or could not give the provider's name or the reason for treatment. After reviewing the medical records, and based on his evaluation of the claimant, Dr. Rubenstein "could not really arrive at any conclusion, hard and fast" (Deposition, 9/22/10, p.9). He "did not agree that the claimant presented with a mild to moderate level of depression. He certainly wasn't a happy fellow, but that had been going on apparently for a long time" (Deposition, 9/22/10, pp. 9-10). Dr. Rubenstein did not know precisely what prior psychiatric or psychological treatment the claimant had but he "concluded that there was no specific psychiatric diagnosis…deriving from the accident" (Deposition, 9/22/10, p. 10). Dr. Rubenstein conceded that the November 28, 2008, incident could be described as a traumatic event in a psychiatric context. The doctor also commented that the claimant's mental retardation and sheltered lifestyle have limited his coping skills, which could make the claimant more susceptible to event-triggered depression. Dr. Rubenstein maintained that during the examination the claimant did not comport with the mental status picture of a depressed patient and did not fit the definition of clinical depression as set forth in the Diagnostic and Statistical Manual used by doctors. While Dr. Rubenstein noted that the claimant was leading the same kind of constricted lifestyle he had been living for many years, Dr. Rubenstein also conceded that he did not have a detailed prior history.

On October 5, 2010, Dr. Hirsch testified that the claimant told him that he had been having nightmares since the incident as well as jitters and anxiety in a crowd, all of which Dr. Hirsch identified as symptoms of PTSD. The claimant had presented as dysphoric and experiencing dysthymia more than a year after the incident. Dysthymia is a long-term depressive disorder with overtones of anxiety. Dr. Hirsch did not obtain hospital records but did speak with the claimant's referring chiropractor, Dr. Amatulli, who told Dr. Hirsch about the claimant's continuing physical pain. Dr. Hirsch opined that the claimant's PTSD was partially caused by the continuing physical pain, and correspondingly, the depression exacerbated the pain. Dr. Hirsch conceded that the claimant has some pre-existing cognitive problems but opined that the claimant's psychological disorder with PTSD symptomatology is causally related to the November 28, 2008, incident. The claimant was unable to work at the time that Dr. Hirsch examined him because of this "tremendous emotional setback" (Deposition, 10/5/10, p. 11).

At the hearing held on November 9, 2010, the WCLJ amended the claim to include consequential mild depression. Thereafter, the claimant testified regarding the issue of attachment to the labor market. He stated that prior to the job he got at Wal-Mart through Labor Ready, he "really wasn't doing much work [because he] couldn't find a job" (Hearing Transcript, 11/9/10, p. 6). Since December 2008, he has been looking for work. He looked at Pizza Hut, Wal-Mart, and Dunkin Donuts. Wal-Mart said they would call him back but they never did. He also looked for work at Kentucky Fried Chicken, Friendly's, and White Castle. He has not heard back from any of the places. He cannot remember the dates that he looked for work, and he did not get names of the managers that he spoke to. His doctors tell him that he can go back to work, but he can only lift so much. He does not believe he can find a job when he cannot lift more than 20 or 30 pounds and he can barely stand up. When he was working for Labor Ready at Wal-Mart, he was required to lift over 60 to 80 pounds. He acknowledged that he did not keep any record or documentation of his job search. His testimony further indicated that he had no familiarity with One Stop Career Centers. The claimant has problems with reading but he is able to write. After claimant's testimony was completed, claimant's attorney raised the issue of total industrial disability.

In a decision filed on November 15, 2010, the WCLJ found the claimant to be credible regarding his limits, his intellectual capabilities, and the fact that he has not intentionally removed himself from the labor market. The WCLJ reserved a decision on the issue of further causally related disability and awards.

LEGAL ANALYSIS

In its application for Mandatory Full Board Review, the carrier for Labor Ready argues that the claimant has not attached himself to the labor market. Pacific did not pursue its request for review of whether the medical evidence supports a finding that the claimant has consequential mild depression.

In its application for Mandatory Full Board Review, Wal-Mart argues that the claimant did not provide credible and sufficient evidence of his reattachment to the labor market. In the alternative, Sedgwick argues that a decision should not have been made until a final decision is made regarding the degree of claimant's disability and entitlement to awards after February 10, 2009.

In his rebuttal, the claimant requests that the Board Panel majority decision be affirmed.

To be entitled to lost wage benefits, a partially disabled claimant is obligated to remain attached to the labor market by making reasonable efforts to obtain employment consistent with his or her physical limitations (see Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 [2012]). A claimant who is totally disabled, or is otherwise unemployable, is not obligated to show an attachment to the labor market to receive lost wage benefits (see Matter of Price v. Hudson Correctional Facility, 24 AD3d 820 [2005]).

Since the issue of attachment to the labor market is relevant only if a claimant is found to be partially, rather than a totally disabled, in the present matter, claimant's degree of disability after February 10, 2009, should have been resolved prior to considering whether the claimant was attached to the labor market. If the WCLJ ultimately concludes that claimant is totally disabled, the claimant would not be required to search for work. Likewise, if the WCLJ finds that claimant's work-related disability, along with other factors such as any non-work related disabilities and claimant's vocational limitations, render claimant effectively unable to work, then claimant need not be required to search for work to be entitled to benefits.

Accordingly, the matter is returned to the trial calendar for the WCLJ to determine claimant's degree of disability after February 10, 2009.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on November 15, 2010, is RESCINDED, without prejudice, and the matter returned to the trial calendar for further development as indicated above.