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 27, 2011.
The issue presented for Mandatory Full Board Review is whether the claimant voluntarily withdrew from the labor market.
The WCLJ determined that the claimant did not voluntarily remove herself from the labor market.
The Board Panel majority reversed, holding that the claimant voluntarily withdrew from the labor market by failing to respond to the employer's offer of a light duty position.
The dissenting Board Panel member would have affirmed the WCLJ's finding that claimant did not voluntarily remove herself from the labor market.
The claimant filed an application for Mandatory Full Board Review on November 22, 2011.
The carrier filed a rebuttal on December 21, 2011.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This case is established for a May 14, 2008, injury to the claimant's low back that occurred while working as a deli associate in Wal-Mart.
In a document dated December 20, 2010, Stephen Lebitsch, the claimant's nurse practitioner, indicated that the claimant was unable to work as a "greeter" due to an inability to sit or stand for long periods of time and noted that the claimant must be able to frequently alter her position due to low back pain.
At a hearing held on May 2, 2011, the claimant testified that she had worked for the employer for approximately four and one-half years and that she was terminated in January of 2011. She stated that she was injured while working in the meat department and, upon returning to work, she was placed in the toy department and subsequently worked as a phone operator. The claimant explained that she began working as a "people greeter" in November of 2010. She had difficulty fulfilling this position because she was unable to sit down when she suffered leg spasms. She stated that she was provided a chair, but that her duties often required her to stand in order to assist customers with returns or check their receipts. The claimant was placed on administrative leave after she provided her employer with a doctor's note that stated that she could no longer work in the greeter position.
Upon cross-examination, the claimant testified that she was not overseen by a manager while working as a greeter, such that she was allowed to sit or stand at her discretion. She also stated that she was able to get up and walk around the area when she needed. The claimant submitted an Accommodation Request form to the employer, dated December 20, 2010, in which she indicated that she needed to work in a different position due to her back injury. In an employer-provided Medical Questionnaire form dated December 21, 2010, Nurse Practitioner Lebitsch indicated that the claimant's chronic low back pain and disc tears required that she sit every 20 to 30 minutes for approximately 5 to 10 minutes and that she should not lift objects weighing more than 15 pounds. Mr. Lebitsch also stated that the claimant must be able to reposition herself every 30 minutes in order to relieve the stress on her back. The claimant received a Final Determination (Alternative Accommodation) letter, dated January 7, 2011, in which the employer's Accommodation Service Center offered her the use of a wheelchair or walker to assist her in performing the greeter position. The claimant testified that her doctor advised her that such accommodations were "not going to help the situation." Claimant did not specify which position she spoke to. The claimant explained that she contacted human resources and advised the employer that she was awaiting her doctor's response. She stated that her physician was in the process of responding to the accommodation offer when she received a letter, dated January 24, 2011, in which the employer requested that the claimant contact the Facility Manager in order to accept or reject the alternative accommodation offer. The letter stated that failure to contact the Facilities Manager within three days of receipt of the letter "could result in termination." The claimant testified that she was terminated via certified mail, but it is unclear whether she is referring to the January 24, 2011, correspondence, as there are no additional forms in the record. Claimant testified that she never received a written report from her doctor indicating that she could not work as a greeter even with the accommodation of a wheelchair or walker. According to claimant, she had contacted VESID and One Stop, and applied to multiple positions since the time of her termination.
The claimant's store manager also testified at the May 2, 2011, hearing. He stated that the claimant was moved to a greeter position in December of 2010. The manager explained that the greeter position consisted of greeting customers, checking receipts, and scanning and labeling returned products. He stated that the claimant may have been required to get up and walk to the front of the store, but that the claimant was permitted to sit or stand as needed. The manager stated that the phone operator position was a light duty position temporarily filled by injured employees.
At the conclusion of the May 2, 2011, hearing, the WCLJ took notice that the employer was likely very busy during the holiday months when the claimant worked as a greeter. The WCLJ found that the claimant did not refuse a light duty job offer and was entitled to ongoing benefits. The resulting decision was filed on May 10, 2011.
"[T]he question of whether a claimant's failure to accept a light-duty assignment constitutes a voluntary withdrawal from the labor market is a factual issue for the Board to resolve and, if supported by substantial evidence, its decision in this regard will not be disturbed" (Matter of Hatter v New Venture Gear, 305 AD2d 757  [citations omitted]). In reviewing such issues of fact, the Board has the "discretion to determine witness credibility and resolve conflicting medical opinions" (Matter of Bentvena v City & Suburban, 57 AD3d 1028 ).
"However, in order for the Board to conclude that there was a voluntary withdrawal, the claimant must first have been actually offered a light-duty position consistent with his or her medical limitations" (Matter of Smith v Waterview Nursing Home, 13 AD3d 744 ). Claimants are not "considered to have voluntarily withdrawn from the labor market … if there is a reasonable basis for the claimant's refusal to accept the light duty work" (Matter of Torrance v Loretto Rest Nursing Home, 61 AD3d 1124  [citations omitted]). Therefore, the light duty position offered must, upon review, prove to be consistent with the claimant's medical limitations (Hatter, 305 AD2d 757 ).
In the instant case, the claimant testified that her injury impeded her ability to perform the duties of the greeter position, as she was unable to sit down when her medical condition so required. Although the claimant conceded that the employer provided a chair in which she could sit at her discretion, she testified that "when you're a greeter, you have to get up to help people with returns, or if an alarm goes off, you have to get information off their receipts." The claimant's nurse practitioner provided a note, which the claimant furnished to the employer, indicating that she was unable to work as a greeter. The claimant testified that her doctor advised her that the employer's offer of the use of a walker or wheelchair "wouldn't be good" and was "not going to help the situation." When asked why the wheelchair or walker would not be a satisfactory accommodation, the claimant stated, "Because I would be doing the same exact job, and I still need to get up a lot more…" She testified that her doctor was in the process of providing paperwork indicating that the accommodations were insufficient when she received a notice of termination. She also stated that she had previously advised the employer's human resources department that she was awaiting such information from her doctor. However, claimant never submitted a written report from her doctor indicating that she could not work as a greeter even with the accommodation of a wheelchair or walker, which would corroborate her testimony.
Therefore, the issue of whether claimant voluntarily withdrew from the labor market is held in abeyance pending submission by the claimant of a medical report from the treating physician who examined her contemporaneously to the employer's offer to allow her to work as a greeter with a wheelchair or walker, which provides an opinion whether claimant could perform that position with the accommodations offered.
ACCORDINGLY, the WCLJ decision filed on May 10, 2011, is RESCINDED, without prejudice, and the matter returned to the trial calendar for further development as indicated above.