Case # 90403761
Date of Accident: 06/23/2004
District Office: Binghamton
Employer: Oneonta Public Transportation
Carrier: Otsego County Self-Ins. Plan
Carrier ID No.: W860001
Carrier Case No.: CON-012-04
Date of Filing of Decision: 08/10/2012
Claimant's Attorney: Richard A. Rothermel, Esq.
Panel: Robert E. Beloten

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 September 2, 2011.

ISSUES

The issues presented for Mandatory Full Board Review are:

1. whether there is sufficient evidence in the record to support awards of additional compensation pursuant to Workers' Compensation Law (WCL) § 15(3)(v); and
2. whether the claimant should be directed to produce a copy of the decision in which she was awarded benefits by the Social Security Administration.

In a reserved decision filed on April 28, 2010, the Workers' Compensation Law Judge (WCLJ) found that the claimant is eligible for benefits under WCL § 15(3)(v), and continued the case "to the next available calendar for awards and to address any remaining issues."

In a Memorandum of Decision filed on September 2, 2011, the Board Panel majority affirmed the WCLJ's decision, finding that claimant is eligible for benefits under WCL § 15(3)(v) The Board Panel majority further found that "[t]he claimant's receipt of Social Security benefits has no bearing upon her entitlement to workers' compensation benefits," and that no further development is required on the issue.

The dissenting Board Panel member would have found that "pursuant to WCL § 15(3)(v) the claimant is not entitled to awards of additional compensation at this time."

In their application for Mandatory Full Board Review filed on September 30, 2011, the self-insured employer and its workers' compensation administrator (SIE) argue that the claimant's request for awards under WCL § 15(3)(v) must be denied.

In a rebuttal filed with the Board on October 13, 2011, the attorney for the claimant requests that the Board Panel decision be affirmed because the WCLJ properly found that the claimant is eligible for benefits under WCL § 15(3)(v).

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

FACTS

This claim is established for a left ankle injury that resulted from an accident on June 23, 2004, while working as a bus driver. In an amended reserved decision filed on September 8, 2008, the WCLJ made an award for a 55% schedule loss of use the left foot. In a decision filed on July 13, 2009, the WCLJ amended the claim to include a consequential left calf muscle tear.

On July 17, 2009, the claimant submitted an RFA-2 to request a hearing to determine her entitlement to benefits under WCL § 15(3)(v). The claimant reported that she is working with VESID, and she has no other disabling conditions.

Dr. Rosas, the claimant's treating orthopedic physician, submitted a C-4.2 report of an examination on September 1, 2009, and diagnosed "pain joint ankle and foot." Dr. Rosas opined that the claimant is unable to return to work because she is unable to bear weight with her left leg. In an attached narrative report, Dr. Rosas noted the claimant's complaints of left ankle and hind foot pain, and pain from a left gastrocnemius tear. Dr. Rosas noted that while the claimant has been doing some physical therapy on her own, she continues to have discomfort and is only able to walk short distances. Dr. Rosas noted that the claimant is actively pursuing a job retraining program with VESID, which will hopefully enable her to return to work in a capacity that does not require standing or walking. Dr. Rosas found that the claimant is still completely disabled from her normal work duties but that she could work in a job that "does not require any standing or carrying anything other than [in]significant weight."

Dr. Belmonte, the SIE's orthopedic physician, submitted an IME-4 report of an examination on December 16, 2009, and noted that the examination was limited to the left lower leg. The claimant complained of stiffness in her left lower leg, with tingling from her ankle to her toe. She also reported that the leg swells and hurts if she's on it a lot. She takes over-the-counter ibuprofen for the symptoms in her left ankle and she has "no other complaints at this time." She did not report any problems with her general medical health but noted that she has been having her cholesterol checked. Dr. Belmonte recorded the claimant's weight of 191 pounds, noting that she had lost four pounds since the examination on March 9, 2009. Dr. Belmonte opined that the claimant had a left foot injury casually related to the accident on June 23, 2004. Dr. Belmonte noted that the claimant was previously found to have a 55% schedule loss of use of the left foot. Dr. Belmonte further noted that the claim has been amended to include a partial tear of the left gastrocnemius but opined that she has recovered and has no residual findings resulting in any additional permanency/schedule loss of use. Dr. Belmonte found no need for any further active treatment, and opined that the claimant could return to full-time work in a sedentary/light-duty capacity. Dr. Belmonte further noted that in addition to the injury to the left lower leg, the claimant has a long history of significant obesity, and that her medical records reflect a "previous medical history [of] asthma, anxiety and/or depression." Therefore, Dr. Belmonte concluded that the claimant has additional medical conditions that contribute to her limitations on her ability to work.

At the hearing held on December 30, 2009, the claimant testified that she had asthma as a child but "never had anything since then," and she does not currently use an inhaler or asthma medications. She does not have diabetes or high blood pressure. She has had difficulty finding work because "most of the jobs out there are jobs I can't do because I can only stand and walk for short periods of time." She has been "checking the computers, checking the papers… checked on a couple of cleaning jobs… [and] did call Oneonta Public Transportation and I was hoping they would let me work in the office and not drive, but that's not an option. I'm also involved with VESID and I am doing some computer classes through the county. And I am going to start some classes with SUNY Cobleskill in March." She has also sought work with a delivery contractor. She meets once per week with a woman through Workforce instructing her with medical transcription work. Her weight has had no effect on her search for employment. Three years earlier, following medical problems in her family, she "got a little depressed," but never sought treatment or was prescribed medication. She receives Social Security benefits. When she applied for Social Security, she applied for no body conditions other than her ankle.

Dr. Belmonte testified by deposition on February 11, 2010, that the claimant's other conditions (asthma, obesity, anxiety and depression) would be a hindrance to certain employment if the claimant attempted to return to work. Dr. Belmonte conceded that in his reports he never mentioned that the claimant had complained of any problems related to asthma or breathing, obesity, anxiety or depression.

Dr. Rosas testified by deposition on March 1, 2010, that the claimant's weight would have no impact upon her wage earning ability. He is unaware of any asthma problems or a depressive condition. He opined that the claimant "could do work that was essentially sedentary without any carrying of any weights."

The claimant submitted a memorandum of law and attached a January 20, 2010 letter from her chiropractor Dr. Burton.

The SIE submitted a memorandum of law, and requested the opportunity to cross-examine Dr. Burton based upon the newly-submitted medical report. The SIE also requested a direction for the claimant to produce documentation of her award from the Social Security Administration because the amount of the award is relevant to the offset provision contained in WCL § 15(3)(v).

In a reserved decision filed on April 28, 2010, the WCLJ found that "[t]he claimant appears to be eligible for benefits under [WCL § 15(3)(v)] as she has participated in a board approved rehabilitation program; [she] has demonstrated cooperation with efforts to institute such a board approved program." The WCLJ further noted that "[t]he claimant receives Social Security benefits only for the leg conditions." The WCLJ also relied on the "claimant's testimony [that she] has been working with VESID and is attending classes at SUNY Cobleskill as of March, 2000." The WCLJ noted that any "additional compensation shall be reduced by fifty per centum of any amount of disability benefits which the disabled employee is receiving or entitled to receive for the same period under the social security act, and shall cease on the date the disabled employee receives or is entitled to receive old-age insurance benefits under the social security act." However, the WCLJ made no decision regarding the amount of the Social Security offset and continued the case "to the next available calendar for awards and to address any remaining issues."

LEGAL ANALYSIS

Requirements for Finding WCL § 15(3)(v)

An award of additional compensation pursuant to Workers' Compensation Law § 15(3)(v) is payable for the impairment of wage earning capacity following the termination of certain schedule loss of use awards 'provided such impairment of earning capacity shall be due solely' to the compensable injury (emphasis added)" (Matter of Porter v D. A. Collins Constr., 28 AD3d 951 [2006]).

Here, there is insufficient evidence to support the SIE's argument that the claimant's obesity is a factor that contributes to her current inability to find work. Specifically, the claimant testified that she has had difficulty finding work because she is unable to stand or walk for very long and she stated that her weight has had no effect on her search for employment. She confirmed that she receives Social Security disability benefits and her application for Social Security disability benefits was based solely on her ankle injury. Dr. Rosas testified that the claimant's weight would have no impact upon her wage earning ability. Further, while Dr. Belmonte testified that the claimant's obesity would be a hindrance to certain employment, he also conceded that the claimant had never complained of any problems related to obesity.

Therefore, the Full Board finds that the ongoing impairment of the claimant's earning capacity is due solely to her compensable injury.

There is also insufficient evidence to support the SIE's argument that the claimant is not entitled to awards pursuant to WCL § 15(3)(v) because she failed to complete a Board approved rehabilitation program since the completion of an approved rehabilitation program is not a condition precedent to a supplemental award (see Matter of Lee v Weiss & Sons Paper & Twine Co., 96 AD2d 620 [1983]). Rather, to be entitled to benefits under WCL § 15(3)(v) , an injured worker is "required to participate in a board approved rehabilitation program; or shall have demonstrated cooperation with efforts to institute such a board approved program and shall have been determined by the board not to be a feasible candidate for rehabilitation" (WCL § 15[3][v]). Here, claimant's participation with VESID is sufficient to satisfy this requirement.

Finally, there is no merit to the SIE's argument that the claimant has failed to conduct an adequate job search.

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).

Here, the claimant testified that she is involved with VESID and she meets once per week with a woman through Workforce. She is also taking computer classes and has plans to start some classes with SUNY Cobleskill.

The Full Board notes that the claimant's testimony regarding her efforts to return to work was not supported by any documentary evidence. However, on September 23, 2011, the Board received written documentation in support of the claimant's testimony. Specifically, in a letter dated September 14, 2011, a vocational rehabilitation counselor with ACCES-VR (formerly VESID) confirmed that the claimant's case was opened on July 13, 2009, the claimant met with the counselor on August 19, 2009, and since that time she has maintained constant contact with the counselor. The counselor confirmed that the claimant has completed all requested tasks, she has participated and completed recommended training, and she continues to work towards her goal of owning her own transportation business.

The Full Board further notes that the Board received additional supporting documentation from the claimant's attorney on October 2, 2011, which provides evidence of the claimant's independent job search efforts during 2009 and 2010. Also submitted were letters from Workforce solutions, correspondence from the claimant's vocational rehabilitation counselor with ACCES-VR, and the claimant's individualized plan for employment.

Therefore, the Full Board finds that the documentary evidence which has subsequently been received by the Board supports a finding that the claimant has conducted an adequate job search, and has actively participated with job-location services.

Benefits Awarded by the Social Security Administration

WCL § 15(3)(v) provides, in relevant part that "[t]he additional compensation shall be reduced by fifty per centum of any amount of disability benefits which the disabled employee is receiving or entitled to receive for the same period under the social security act, and shall cease on the date the disabled employee receives or is entitled to receive old-age insurance benefits under the social security act."

Prior to any awards being made in the case pursuant to WCL § 15(3)(v), the Board will need to have evidence of the amount of the claimant's Social Security disability benefits. Here, no awards were made by the WCLJ in the reserved decision filed on April 28, 2010. Rather, the WCLJ continued the case "to the next available calendar for awards and to address any remaining issues."

Therefore, the Full Board finds that further development of the record is required prior to directing payment of awards pursuant to WCL § 15(3)(v). Specifically, the claimant is directed to produce documentation of her Social Security benefits because the exact amount of benefits that she receives is relevant to the offset provision contained in WCL § 15(3)(v). Upon production of the documentation, the matter can be returned to the WCLJ for further consideration of any remaining issues, and for awards to be made.

CONCLUSION

Accordingly, the WCLJ reserved decision filed on April 28, 2010, is MODIFIED to find that the documentary evidence that was subsequently received by the Board supports a finding that the claimant has conducted an adequate job search, and has actively participated with job-location services; and to clarify that further development of the record is required on the issue of the Social Security offset. The claimant is directed to produce documentation of her Social Security benefits because the exact amount of benefits that she receives is relevant to the offset provision contained in WCL § 15(3)(v). The rest of the WCLJ decision remains in effect. The case is continued.