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 January 18, 2011.
The issue presented for Mandatory Full Board Review is whether the claimant remains attached to the labor market and is entitled to reduced earnings.
The Workers' Compensation Law Judge (WCLJ) found that the claimant remained attached to the labor market and directed awards from November 18, 2009, to January 9, 2010, and continuing, at a tentative rate of $240.00 per week.
The Board Panel majority affirmed the WCLJ's decision.
The dissenting Board Panel member found the claimant removed herself from the labor market on November 18, 2009, because she has not made sufficient attempts to obtain new employment within her restrictions.
The carrier filed an application for Mandatory Full Board Review on February 10, 2011.
The claimant filed a rebuttal on March 10, 2011.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This case is established for work-related injuries to the left knee and back resulting from an incident at work on May 9, 2008, when claimant, a certified nurse aide (CNA), tripped and fell. The average weekly wage is set at $784.06 without prejudice.
Awards were originally directed from May 16, 2008, to August 18, 2008, at a temporary total rate of $500.00 per week and from October 18, 2008, to February 18, 2009, at a tentative rate of $260.00 per week. Awards were suspended at the February 17, 2009, hearing based on the January 20, 2009, report of the carrier's consultant, Dr. Kerness, who found that the claimant had no further causally related disability. Based upon the contrary findings provided by the claimant's physicians, the WCLJ directed medical depositions on the issue of further causally related disability.
Claimant's treating physician, Dr. Slukhinski, testified that the claimant underwent left knee surgery on November 12, 2008. Subsequent to this procedure, Dr. Slukhinski examined the claimant on January 13, 2009, March 3, 2009, and April 1, 2009. At the conclusion of each examination, Dr. Slukhinski found that the claimant was unable to perform her prior job duties as a CNA and had a marked to total degree of disability. She further opined that the claimant should be able to return to a sedentary job within three to four months, but that the claimant will never be able to perform work that involves any lifting, pulling, or pushing (which encompasses her former job).
Claimant's treating chiropractor, Dr. Introna, testified that based upon his March 30, 2009, examination, the claimant had atrophy in the thigh and calf, positive findings to the back including severe restricted range of motion in all directions, and a MRI exam which revealed disc bulges at L4-5 and L5-S1. Based upon this examination, the claimant was totally disabled from all employment.
Claimant's treating orthopedist, Dr. Wilen, testified that he performed the claimant's left knee surgery on November 12, 2008. Since this surgery, he has examined the claimant on a monthly basis and found the claimant totally disabled through his last examination of March 17, 2009.
The carrier's consultant, Dr. Kerness, did not testify.
On July 20, 2009, the WCLJ issued a reserved decision finding that the claimant continues to have a further causally related partial disability and directed awards from February 18, 2009, to July 16, 2009, and continuing at a partial disability rate of $280.00 per week, which represents a 53.57% degree of disability. Neither party filed an application for administrative review of this decision.
Thereafter, the carrier had the claimant examined by its consulting orthopedist, Dr. Seslowe, on September 22, 2009. Dr. Seslowe examined the claimant's left knee and back, and noted positive findings for both sites. However, Dr. Seslowe opined that the claimant had only a mild left knee disability and required no further treatment to either site. Upon receiving the consultant's report, the carrier filed a RFA-2 on October 7, 2009, requesting a hearing to reduce continuing awards.
At the hearing subsequently held on November 17, 2009, the WCLJ directed awards from July 16, 2009, to November 18, 2009, at the partial disability rate of $280.00 per week, and continued awards at a tentative rate of $240.00 per week. Furthermore, because the carrier raised the issue of labor market attachment, the case was continued to January 8, 2010, for the claimant's testimony.
Prior to the claimant's testimony at the January 8, 2010, hearing, the WCLJ modified prior awards from November 12, 2008 (i.e. the date of her knee surgery), through February 18, 2009, to the total disability rate, without objection.
At the hearing on January 8, 2010, claimant testified that she worked for her employer as a CNA for 27 years and has not returned to work because her physicians have not advised her that she could return to this employment. Her physicians advised her that she cannot lift, push, sit or stand for long periods, and cannot move any heavy items. She is currently receiving Social Security Disability benefits. She did not search for any employment until November 2009, when her attorney advised her to begin a job search. While at CVS to pick up her prescriptions, she inquired about a job opening for a cashier. She spoke to the store's manager who advised her not to apply because of her "condition." Soon thereafter, she was talking to her daughter about searching for work when her daughter offered her a job watching her children (the claimant's grandchildren), ages four and three, after school, and preparing dinner five nights a week, three hours per day. In return she would be paid $100.00 per week, the same amount the claimant's daughter had been paying someone else to perform the same job. The claimant accepted this offer and noted that she was to begin watching the grandchildren the following Monday (January 11, 2010).
At the conclusion of the claimant's testimony and following summations, the WCLJ found that the claimant remains attached to the labor market because she searched for work within her physical abilities and accepted a job within her physical abilities. The WCLJ then directed awards from November 18, 2009, to January 9, 2010, and continuing, at a tentative rate of $240.00 per week. These findings were memorialized in a decision filed on January 13, 2010.
Labor Market Attachment
Although it appears from the record that claimant can no longer return to work as a CNA as the result of her work-related injury, the WCLJ concluded in his reserved decision filed July 20, 2009, that the claimant was partially disabled from February 18, 2009, forward. The carrier raised the issue of labor market attachment at the November 17 2009, hearing.
"[A] central question for the Board to resolve, before awarding wage replacement benefits in a nonschedule permanent partial disability case, is 'whether a claimant has maintained a sufficient attachment to the labor market' (Burns v Varriale, 9 NY3d 207, 216, 879 N.E.2d 140, 849 N.Y.S.2d 1 ; see Matter of Jordan v Decorative Co., 230 NY 522, 526-527, 130 N.E. 634 ). 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' (Burns, 9 NY3d at 216)." (Matter of Zamora v New York Neurologic Assoc., __ NY3d __, 2012 NY Slip Op 03357). A claimant who is temporarily partially disabled must also demonstrate an attachment to the labor market to be entitled to continuing compensation benefits (see Matter of Bacci v Staten Is. Univ. Hosp., 32 AD3d 582 ).
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).
At the January 8, 2010, hearing, claimant testified that since the hearing on November 17, 2009, she had applied for only one job. Clearly, as of the January 8, 2010, hearing, claimant had failed to produce evidence that she had conducted a timely, diligent, and persistent independent job, or an any other way demonstrate that she was attached to the labor market search pursuant to American Axle. Therefore, the Full Board finds that claimant did not sustain any causally related reduced earnings for the period from November 17, 2009, to January 8, 2010.
Actual Reduced Earnings
A claimant is eligible for a reduced earnings award when she returns to work at a lower wage rate following a compensable injury and such lower wage rate is determined to be caused, at least in part, by the claimant's causally related disability (Matter of Johnson v Onondaga Heating & Air Conditioning, 301 AD2d 903 ).
At the January 8, 2010, hearing, claimant testified that she was talking to her daughter about her search for work when her daughter offered her a job watching the claimant's grandchildren and preparing dinner five nights a week, three hours per day, in return for which she would be paid $100.00 per week. The claimant testified that she accepted her daughter's offer and that she planned to begin watching her grandchildren the following Monday, January 11, 2010. Under similar facts, the Board has found that a claimant who was compensated for providing childcare to her grandchildren, a task consistent with her partial disability, was entitled to a reduced earnings award (Matter of Revival Home Care, 2011 NY Wrk Comp 00609946). However, at the time of the January 8, 2010, hearing, claimant had not begun taking care of her grandchildren and has produced no evidence of actual reduced earnings.
Therefore, awards from January 8, 2010, forward are held in abeyance pending production by the claimant of documentary evidence of her earnings subsequent to January 8, 2010, including her 2010 federal income tax return.
ACCORDINGLY, the WCLJ decision filed on January 13, 2010, is RESCINDED. No further action is planned by the Board at this time.