Case # G0176325
Date of Accident: 10/01/2009
District Office: Peekskill
Employer: Yonkers Contracting Company
Carrier: Arch Insurance Company
Carrier ID No.: W087381
Carrier Case No.: 002204-000398
Date of Filing of Decision: 09/10/2012
Claimant's Attorney: Ball & Ferrari
Panel: Robert E. Beloten

The Full Board, at its meeting on July 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 16, 2011.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant's loss of earnings after being laid off on December 21, 2009, were due to his work-related disability.

By a decision filed October 8, 2010, the Workers' Compensation Law Judge (WCLJ) awarded benefits from January 5, 2010, forward.

The Board Panel majority modified the WCLJ's decision to reduce the rate of awards for the period from July 25, 2010, to September 15, 2010, but otherwise affirmed the awards made by the WCLJ.

The dissent found that the claimant's wage loss was not causally related to his work-related back injury.

The carrier filed an application for Mandatory Full Board Review on September 7, 2011.

The claimant filed a rebuttal on October 7, 2011.

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

FACTS

On February 8, 2010, the claimant filed a C-3 (employee claim) indicating that he injured his back on October 1, 2009, while working as a laborer for the employer. The claimant also indicated in the form that he sought treatment for his work-related back injury on December 9, 2009, from Dr. Essien.

The first document filed in the case was a January 5, 2010, C-4 report from Dr. Palmeri, an orthopedic surgeon. Dr. Palmeri's January 5, 2010, narrative report was addressed to Dr. Essien, provided thanks to Dr. Essien for the referral, and mentioned a December 9, 2009, x-ray of the claimant's lower back. Dr. Palmeri's indicated that the claimant had a 100% temporary impairment, and in his narrative, opined that the claimant was temporarily totally disabled from his work as a laborer.

The carrier accepted the claim via the filing of a C-669 (Notice to Chair of Carrier's Action on Claim for Benefits) and the case was subsequently established for the claimant's back. The claimant's average weekly wage was set at $1,278.85. The carrier was precluded from producing a medical consultant's opinion on the issue of causally related disability for the period from December 21, 2009, to September 8, 2010.

The claimant was examined on behalf of the carrier by medical consultant Dr. Burak, an orthopedic surgeon, on September 15, 2010. Dr. Burak opined that the claimant's work accident "caused an aggravation of a long pre-existing arthritic process in his spine," and that the claimant had a causally related mild partial disability, which was "substantially and materially worsened by the fact that he does have underlying osteoarthritis," which condition preceded the work accident.

Throughout his treatment of the claimant from January 2010 to April 2011, Dr. Palmeri's C-4 reports state that the claimant had a 100% temporary impairment, and his narrative reports state that the claimant was totally disabled from his work as a laborer.

At the hearing held on October 5, 2010, the claimant testified (with the assistance of a Spanish interpreter) that he had been a member of the Local 60 of the Heavy and Highway Laborers' Union for 25 years. After his work accident on October 1, 2009, he continued working until December 21, 2009, when "the work finished." Even if the work had not finished, he could not have continued to work for the employer. He had only continued to work after the work accident because he needed the money to pay rent and expenses, but by the time the work came to an end on December 21, 2009, his back was hurting even more. He began to see Dr. Palmeri around January 5, 2010, who advised that he not return to work; based on that advice, he did not seek work after he was let go from his job. In or around March 2010, he received a telephone call from his union advising that work was available, but he responded that he could not work because his back was hurting him. After December 21, 2009, he began to receive unemployment insurance benefits and continued to receive them until July 25, 2010, at which time he received approval for Social Security Disability benefits.

In a decision filed October 8, 2010, the WCLJ found that the claimant had testified credibly that he would not have been able to continue to work due to the condition of his back, even if he had not been laid off on December 21, 2009. The WCLJ found that the termination of the claimant's union job was coincidental with his inability to continue to perform labor functions due to his back condition; that as of June 1, 2010, awards are subject to possible Social Security Disability offset; and that while the claimant was in receipt of unemployment insurance benefits, he was attached to the labor market. The WCLJ made awards as follows: from December 21, 2009, to January 5, 2010, no medical evidence; from January 5, 2010, to July 25, 2010, at $195.00, tentative rate (difference between unemployment insurance benefits and tentative rate), per week; from July 25, 2010, to September 15, 2010, at $600.00, tentative rate, per week; from September 15, 2010, to October 6, 2010, at $213.14, tentative rate, per week; and continuing payments at $213.14, tentative rate, per week. The claimant's attorney was awarded a fee of $2,800.00.

LEGAL ANALYSIS

In its application for Mandatory Full Board Review, the carrier argues that the claimant's layoff was the cause of his loss of earnings, and that the holding in Matter of Bacci v Staten Island University Hospital (32 AD 3d 582 [2006]) applies to this case as the claimant did not look for work after the layoff and thus failed to re-attach to the labor market.

In rebuttal, the claimant argues that he would not have been able to continue working due to his back condition even if he had not been laid off on December 21, 2009. In addition, the claimant argues that he did not look for work after he was let go from his job based upon the advice of his treating physician. The claimant does not contest the modification of the awards for the period from July 25, 2010, to September 15, 2010, or the reduction in attorney's fee award.

When a claimant's loss of employment is due to reasons other than his work-related disability, the claimant has the burden of establishing by substantial evidence that the limitations on his employment due to his disability were a cause of his subsequent inability to obtain employment (Matter of Dudlo v Polytherm Plastics, 125 AD2d 792 [1986]; Matter of Scotchmer v Dresser Rand Co., 256 AD2d 682 [1998]; Matter of Benesch v Utilities Mutual Ins. Co., 263 AD2d 585 [1999]; Matter of Griffin v Syracuse Rigging Co., 259 AD2d 925 [1999]). In contrast, when a claimant's loss of employment is due to his work-related disability, his immediate loss of earnings is clearly causally related to his disability, and the claimant is entitled to awards if they are substantiated by medical evidence. However, a claimant who is temporarily partially disabled must then demonstrate an attachment to the labor market to be entitled to continuing compensation benefits (see Matter of American Axle., 2010 NY Wrk Comp 80303659). A partially disabled person need only seek employment within his or her medical restrictions (Matter of Sanchez v Consolidated Edison Co. of N.Y., Inc., 40 AD3d 1153 [2007]) and for which he or she is qualified (see Matter of St. Francis Construction Co., 2009 NY Wrk Comp 30705539).

Here, the carrier argues that the claimant failed to attach to the labor market after he was laid off due to a lack of work and not his disability. The claimant failed to show any attachment to the labor market subsequently. The carrier further notes that the claimant did not seek treatment for his back until January 5, 2010, when he treated with Dr. Palmeri, three weeks after being laid off, and Dr. Palmeri did not indicate that the claimant was totally disabled from work, but only disabled from his prior occupation as a laborer.

Although no report of the visit has been filed with the Board, the record reflects that claimant initially treated with Dr. Essien on December 9, 2009. Dr. Essien then referred the claimant to Dr. Palmeri. The claimant's first appointment with Dr. Palmeri was January 5, 2010, several weeks after claimant had been laid off. Dr. Palmeri opined that the claimant had a thoracolumbar strain with spondylolisthesis and possible herniated nucleus pulposus with radiculopathy. Dr. Palmeri advised the claimant that he should not return to work. Based on that advice, the claimant did not seek work after he was let go from his job. Although Dr. Palmeri's January 5, 2010, narrative report and subsequent narrative reports state only that the claimant was totally disabled from his work as a laborer, and do not indicate that the claimant was unable to do any work, the C-4 reports indicate that the claimant had a 100% temporary impairment. Dr. Palmeri's opinion was uncontroverted until September 15, 2010.

The claimant testified that even if the work "had not finished" and he could have continued to work for the employer, he would not have done so due to the worsening of his back condition. He testified that he continued to work after his work accident because he needed to pay bills. For a finding of involuntary withdrawal from the labor market, a claimant need only show that his disability caused or contributed to his decision to stop working (see Matter of Funke v Eastern Suffolk Boces, 80 AD3d 971 [2011]). The claimant testified that Dr. Palmeri told him he could not return to work, and that he relied upon that advice.

Based upon a review of the record and a preponderance of the evidence, the Full Board finds that claimant's loss of earnings after his work stoppage on December 21, 2009, was related to his work-related disability. The Full Board also finds that the claimant, having been placed on notice at the October 5, 2010, hearing that he should be seeking work within his medical restrictions, now has an obligation to re-attach to the labor market. In addition, the WCLJ's finding that the claimant was attached to the labor market by virtue of his receiving unemployment benefits is herein rescinded. (see Matter of American Axle, 2010 NY Wrk Comp 80303659).

Awards for the period from July 25, 2010, to September 15, 2010, were rendered at the total disability benefit rate. However, the Full Board finds that the rate is not supported by the medical evidence, specifically the reports of Dr. Palmeri. It was determined at the October 5, 2010, hearing, that although Dr. Palmeri indicated a 100% temporary impairment, his narrative reports stated that the claimant was totally disabled only as to work as a laborer. Thus, the award is modified to reflect a moderate partial disability rate ($426.28 per week) for that time period, on a tentative basis. Based on the modification of the award, the Full Board also finds that the attorney's fee should be reduced to $1,400.00.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed October 8, 2010, is MODIFIED to make awards from the period July 5, 2010, to September 15, 2010, at the tentative rate of $426.28 per week, and to modify the attorney's fee to $1,400.00. In addition, the finding that the claimant was attached to the labor market while he was in receipt of unemployment benefits is rescinded, and is replaced with the finding that the claimant was entitled to rely on his treating physician's uncontroverted opinion that he should not return to work after January 5, 2010. The WCLJ decision otherwise remains in effect. No further action is directed.