The Full Board, at its meeting held on June 19, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on December 23, 2010.
The issue presented for Mandatory Full Board Review is whether the claimant's ongoing loss of earnings is causally related to his compensable disability.
In a reserved decision filed on May 12, 2010, the Workers' Compensation Law Judge (WCLJ) found that the claimant is totally industrially disabled and has not voluntarily removed himself from the labor market.
In a Memorandum of Decision filed December 23, 2010, the Board Panel majority reversed the WCLJ's decision, concluding that the claimant does not have a total industrial disability, that his loss of earnings is not due to his work-related disability, and that he has no compensable lost time after May 12, 2010.
The dissenting Board Panel member agreed that the claimant does not have a total industrial disability, but would have affirmed the WCLJ's decision to find that the claimant's loss of earnings is due to work-related disability.
In his application for Mandatory Full Board Review filed on January 21, 2011, the claimant objects to the decision to suspend awards at the permanent partial disability rate. The claimant argues that he has "neither the physical [n]or mental capacity to perform any gainful employment and should be considered totally disabled on a permanent basis."
In a rebuttal filed with the Board on February 18, 2011, the carrier requests that the majority decision be affirmed in its entirety. The carrier argues that the evidence does not support a finding of total industrial disability, and that the claimant's lost earnings are not due to his work related disability.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On January 18, 2001, claimant, then a 34 year old school bus driver, was injured when he slipped and fell at work. This case is established for injuries to the back and left arm, and for a consequential psychiatric condition.
Dr. Zaretsky, the carrier's consulting orthopedic physician, submitted an IME-4 report for an examination on February 12, 2007, and opined that the claimant has no further causally related disability involving his left shoulder, but has an overall causally related permanent mild disability involving his lumbar spine injury. Dr. Zaretsky opined that the claimant is able to do light duty work involving no more than 20 pounds of force occasionally, and/or no more than 10 pounds of force frequently.
Dr. Aldin, the carrier's consulting psychiatrist, submitted an IME-4 report for an examination on February 13, 2007, and opined that the claimant suffers from a schizo-affective illness, which is a form of schizophrenia that's accompanied by severe depression. Dr. Aldin opined that the claimant has not reached maximum medical improvement but currently has a marked partial psychiatric disability that prevents him from returning to normal employment. He opined that the claimant could work in a light, non-stressful environment.
Dr. Konon, the claimant's treating physician, submitted a C-4 report for an examination on March 28, 2007, and opined that the claimant was totally disabled, causally related to injuries to his shoulder and back injuries that occurred on January 18, 2001.
In a decision filed on July 17, 2007, the claimant was classified with a permanent partial disability, and the carrier was directed to continue awards at the stipulated (marked) rate of $320.00 per week.
On December 1, 2008, the carrier filed an RFA-2 form (Carrier's Request for Further Action) to request the suspension of awards based on the claimant's failure to respond to requests for documentation of his work search efforts.
The claimant testified at the hearing held on April 29, 2009, that he is literate in English but has difficulty when speaking English. He stated that he has not worked since the date of accident. To look for work he has "called from the newspapers" (p. 3). He gives his information and they say they will call back and then he gets really depressed. They have never called him back. He was asked to provide an example of where he has looked for work and he stated that he had walked into a "99 cents" store and inquired about employment. The store was not advertising for an employee and advised the claimant to contact them at another time. He contacted another store one week prior to his testimony, but he could not recall any further details since he has memory problems. The claimant has not contacted any employment or retraining service.
In a decision filed on May 4, 2009, the WCLJ held the carrier's RFA-2 in abeyance, directed the claimant to produce medical evidence for all periods of lost time since 2007, noted that the claimant raised the issue of total industrial disability at the April 29, 2009 hearing, and continued the case.
In a letter dated June 23, 2009, Dr. Kury, the claimant's treating psychiatrist, noted that the claimant has a diagnosis of schizoaffective disorder which results in a depressed mood, nervousness, poor impulse control, mood swings, poor concentration, difficulty relating to people, and hallucinations. Dr. Kury opined that based on the diagnosis and symptoms of his mental condition, the claimant is disabled from work activities.
In a decision filed on January 5, 2010, the parties were directed to submit the deposition transcript of Dr. Kury, and the claimant was directed to produce a completed job search information request.
Dr. Kury testified by telephone deposition on March 1, 2010, that she has been the claimant's attending psychiatrist since 2004. The claimant complains of being depressed and irritable, as well as experiencing insomnia, audible hallucinations, and memory loss. Psychiatric evaluation of the claimant showed the claimant to have normal judgment, behavior, and speech, but poor attention and concentration. Dr. Kury opined that the claimant is unemployable because he is irritable and cannot drive.
As noted above, in a reserved decision filed on May 12, 2010, the WCLJ found that the claimant has a total industrial disability, based upon his permanent physical disability, his psychiatric disability, his educational barriers, and his language barriers; that the claimant has not voluntarily withdrawn from the labor market; and that claimant is entitled to awards.
Prior to the claimant's classification with a marked disability in 2007, the claimant's physician found him to be totally disabled and the carrier's consultants found a mild physical disability and a marked mental disability. According to Dr. Kury's letter dated June 23, 2009, and her testimony, the claimant is unable to work because of his mental disability. Dr. Kury's diagnosis of schizoaffective disorder is the same diagnosis the claimant was given by Dr. Aldin prior to the finding of permanency.
Therefore, the Full Board finds that there is insufficient evidence that the claimant has had a change in condition that now renders him permanently totally disabled.
Total Industrial Disability
"A claimant who has a permanent partial disability may nonetheless be classified as totally industrially disabled where the limitations imposed by the work-related disability, coupled with other factors, such as limited educational background and work history, render the claimant incapable of gainful employment. The issue of whether a claimant has a total industrial disability is a question of fact for the Board to resolve, and the Board's determination will not be disturbed if supported by substantial evidence …" (Matter of Newman v Xerox Corp., 48 AD3d 843  [internal quotation marks and citations omitted]).
While the claimant indicated during his testimony that he has trouble speaking English, the record contains insufficient evidence that this was the reason that he was unable to find work. Further, the record contains insufficient evidence that the claimant's educational or vocational background or other factors would cause him to be totally unemployable, when combined with the work-related disability.
Therefore, the Full Board finds that the claimant failed to meet his burden to show that he is totally industrially disabled. Claimant can, of course, come forward in the future with evidence of his vocational limitations in support of a claim that he is totally industrially disabled.
Voluntary Removal from the Labor Market
The issue of whether a claimant has voluntarily withdrawn from the labor market is a question of fact for the Board to resolve and, if supported by substantial evidence in the record, the Board's resolution of that issue should not be disturbed (Matter of Zamora v New York Neurologic Assoc., __ NY3d __, 2012 NY Slip Op 03357).
Here, the claimant has been classified with a permanent partial disability, and the carrier was previously directed to continue awards at the stipulated permanent rate of $320.00 per week. It is readily apparent that the claimant is unable to return to his job as a bus driver with the employer due to his compensable injuries. Thus, the claimant's work stoppage was involuntary.
Where, as here, the claimant has a permanent partial disability and has been found to have involuntarily withdrawn from the labor market, either by retiring or stopping work due to his/her causally related disability, the Board may, but is not required to, infer that any subsequent loss of wages is attributable to the disability (Zamora, __ NY3d __, 2012 NY Slip Op 03357). The claimant has the burden of establishing by substantial evidence, that he "made a reasonable search for work consistent with [his] physical restrictions" (id.). 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 ) and for which he or she is qualified (see Matter of St. Francis Constr. Co., 2009 NY Wrk Comp 30705539). Whether a claimant actually maintains an attachment to the labor market sufficient to justify continued compensation benefits is a factual determination for the Board to resolve (Matter of Rothe v United Med. Assoc., 18 AD3d 1093 ).
Attachment to the labor market can be demonstrated by credible documentary evidence showing that claimant is actively seeking work within the restrictions through an independent job search that is timely, diligent, and persistent; or is actively participating in a job-location service such as (1) New York State's Department of Labor's re-employment services, (2) One-Stop Career Centers, or (3) a job service commonly utilized to secure work within a specific industry; or is actively participating in vocational rehabilitation through VESID or other Board-approved rehabilitation program; or is actively participating in a job-retraining program; or is attending an accredited educational institution full time to pursue employment within the work restrictions (Matter of American Axle, 2010 NY Wrk Comp 80303659).
At a minimum, if the independent job search is in person, documentary evidence should provide the day, month, and year of the contact; the name and address of the employer; the name and telephone number of the person with whom employment was discussed; the type of job sought; and the response of the potential employer. If the contact was written, copies of the resume submitted if any; the inquiry letter or e-mail communication; or the application completed is necessary along with the day, month, and year submitted, the nature of employment sought, name and address of the employer and the response of the potential employer (id.).
Here, the claimant testified that he has been looking for jobs, that the employers do not call him back, and that he gets depressed. However, the claimant failed to submit any documentation of his job search. Further, the claimant has not participated in any job-location or retraining service. His efforts to look for work are minimal, at best. The claimant could specify only one contact for employment, and this one contact was minimal and not based upon an actual job opening.
Therefore, the Full Board finds that the claimant's loss of earnings is not due to his work-related disability. Claimant can, of course, come forward in the future with evidence of a timely, diligent, and persistent attempt to seek work within his restrictions, consistent with Matter of American Axle.
Accordingly, the WCLJ reserved decision filed on May 12, 2010, is REVERSED. The claimant has no compensable lost time after May 12, 2010. No further action is planned by the Board at this time.