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 April 13, 2011.
The issue presented for Mandatory Full Board Review is whether the claimant reattached to the labor market on February 6, 2009.
In a reserved decision filed on May 3, 2010, the Workers' Compensation Law Judge (WCLJ) found the claimant reattached to the labor market.
The Board Panel majority affirmed the WCLJ findings.
The dissenting Board Panel member found that the claimant did not reattach to the labor market.
The carrier filed an application for Mandatory Full Board Review on May 10, 2011.
The claimant filed a rebuttal on June 8, 2011.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This case was originally established for a left knee injury sustained on January 6, 2004, when the claimant fell off a press at work. Pursuant to a stipulation signed on March 9, 2007, and after a hearing held on that date, the claim was amended to include a causally related back injury and the claimant was found to have a 10% schedule loss of use (SLU) of his left leg.
Although the claimant was found to have a 10% SLU of his left leg, he continued to receive medical treatment for his ongoing back disability, including receiving carrier authorization for an x-ray, an MRI, and epidural steroid injections. The C-4 forms filed through 2008 indicated the claimant has a partial disability and could perform sedentary work.
In C-4.2 forms filed by Dr. Constantine on January 30, 2009, March 6, 2009, and May 1, 2009, the claimant was found to have a 60% temporary disability.
In C-4 forms and corresponding narrative reports submitted by Dr. Soults following his May 5, 2009, and June 16, 2009, examinations, Dr. Soults stated that the claimant had been laid off from his employment. Dr. Soults further reported that the claimant's back pain was exacerbated after being involved in a motor vehicle accident in February 2009. Neither of these reports ascribed a degree of disability to the claimant's causally related injuries.
The case remained dormant until December 17, 2009, at which time the claimant filed a RFA-1 stating he is not working and not receiving payments.
Following the filing of the claimant's RFA-1, the carrier had the claimant examined by its consultant, Dr. Paarlberg, on January 25, 2010. During the examination, the claimant stated that he had been involved in a February 23, 2009, motor vehicle accident which aggravated his neck and back problems. After the claimant was involved in the motor vehicle accident, he underwent a discogram, an MRI and CAT scans. After performing a physical examination, Dr. Paarlberg diagnosed the claimant with multi-level lumbar degenerative disc disease with bilateral radiculopathy, right worse than left, with 80% of the claimant's disability causally related to his 2004 work accident and 20% related to his 2009 motor vehicle accident. The consultant opined that the claimant could currently work at a modified duty with sit/stand options with no bending or lifting.
At a hearing held on March 15, 2010, the WCLJ held awards from February 6, 2009, forward in abeyance and continued the case to April 28, 2010, for the claimant's testimony on the issue of labor market attachment.
On April 28, 2010, the claimant testified that his employer shut down its business on February 6, 2009, resulting in his losing his job and collecting unemployment benefits. Right after the employer closed its doors, he began to search for other employment. Although he attempted to find work, there were days that he could not get out of bed because of his back condition. In attempting to search for work, he enlisted the help of the unemployment office and the One-Stop Career Center. He also went to classes to learn what other lines of work he could perform and to help him prepare a resume. In addition, he applied for employment with several businesses. He presented a documented list of his work search. He testified about a few of these applications, including contact with Vick's Litho Printing Company on April 29, 2009, who advised they were not hiring at that time. He last applied for work about two weeks earlier with Cavo Supplies who had a help wanted sign, but after speaking with someone was advised that he could not be hired because of his back condition. Although he is actively searching for employment, his physicians advised him that he should not be working, which recommendation began soon after his February 23, 2009 motor vehicle accident.
During the hearing, the claimant presented 92 pages of employment applications and job search logs reflecting his independent job search efforts. This documentary evidence reflects that claimant filed numerous applications for employment during the period from April 7, 2009, to July 17, 2009, and from March 6, 2010, to the date of the hearing. However, claimant has produced no documentary evidence of an independent job search or of his participation at One-Stop or any other job service, during the period from July 17, 2009, to March 6, 2010.
Following the claimant's testimony, the WCLJ found the claimant reattached to the job market based upon his effort to search for employment and his being denied employment because of his back disability. No awards were made and the case was marked no further action. These findings were memorialized in a decision filed on May 3, 2010.
Where a claimant's loss of employment is due to factors other than his work-related injuries, the claimant bears 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 Cicinnati v Clare Rose, Inc., 71 AD3d 1263 ).
In this matter, the claimant conceded that he lost his job on February 6, 2009, because his employer went out of business, and not because of his causally related disability.
Once a finding is made that the claimant stopped working for reasons other than his disability, the claimant must reattach to the labor market before there is a finding of subsequent causally related lost earnings (see Matter of Bacci v Staten Is. Univ. Hosp., 32 AD3d 582 ). Reattachment to the labor market can be demonstrated by credible documentary evidence showing that the claimant is actively seeking work, within medical 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; 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).
In this case, the claimant testified that he began searching for work the day his employer went out of business. The claimant further testified that he not only made use of the unemployment office to find work, he utilized the local One-Stop Career Center, and took classes which helped him prepare a resume and assisted him in his job search. However, the claimant failed to produce documentary evidence of a job search or of his participation at One-Stop or any other job service for the period prior to April 7, 2009. Therefore, the Full Board finds that record supports a finding that claimant reattached to the labor market on April 7, 2009, remained attached from that date until July 17, 2009, and is entitled to awards during that period.
However, claimant has produced no documentary evidence of an independent job search or of his participation at One-Stop or any other job service, during the period from July 17, 2009, to March 6, 2010. Therefore, the Full Board finds that claimant has produced insufficient evidence of attachment to the labor market during that period.
Finally, the Full Board finds claimant has produced sufficient documentary evidence of a timely, diligent, and persistent search for work to find an attachment to the labor market during the period from March 6, 2010, to April 28, 2010.
ACCORDINGLY, the WCLJ decision filed on May 3, 2010, is MODIFIED to find that claimant reattached to the labor market on April 7, 2009, remained attached from that date until July 17, 2009; that claimant has failed to prove an attachment to the labor market for the period from July 17, 2009, to March 6, 2010; and that claimant has shown that he was attached to the labor market during the period from March 6, 2010, to April 28, 2010. The matter is remitted to the trial calendar to make appropriate awards.