The Full Board, at its meeting on June 19, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on October 27, 2011.
The issue presented for Mandatory Full Board Review is whether the claimant's efforts to find a job within her restrictions constituted a re-attachment to the labor market, and if so, for what periods.
In a decision filed on March 7, 2011, the WCLJ found that the claimant re-attached to the labor market as of October 8, 2010, held in abeyance awards from that date until December 7, 2010, and made awards from December 7, 2010, forward at a tentative rate.
The Board Panel majority modified the WCLJ's decision to find that the claimant demonstrated a re-attachment to the labor market on October 20, 2010, and made awards from that date forward at a tentative rate.
The dissent found that claimant re-attached to the labor market on October 20, 2010, but would suspend awards as of December 6, 2010, based on claimant's failure to demonstrate an ongoing attachment to the labor market.
In the carrier's application for Mandatory Full Board Review filed on November 10, 2011, it argues that the claimant has not shown a bona fide attachment to the labor market, and that awards should be rescinded subsequent to October 20, 2010.
A rebuttal was not filed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, then a fifty-two year old electronics technician, sustained injuries upon tripping over a rolled-up carpet at work on November 20, 2007. The case was initially established for the back and neck.
The claimant returned to her employment, with alleged intermittent lost time following the November 20, 2007, work accident, and was laid off from her employment on April 21, 2009.
The claimant was examined by her treating orthopedic physician, Dr. Carroll, on May 12, 2009. Dr. Carroll indicated, on an EC-4NARR filed on May 28, 2009, that the claimant had displacement of cervical and lumbar intervertebral discs without myelopathy. Dr. Carroll found that the claimant had chronic discogenic neck and back pain, and opined that the claimant had a 65% impairment to the neck and back.
In a decision filed on October 8, 2010, the Board Panel determined that the claimant had voluntarily withdrawn from the labor market upon being laid off from her employment on April 21, 2009, and modified the WCLJ decision filed on May 17, 2010, to rescind awards pending the claimant's demonstration of re-attachment to the labor market.
The claimant filed an RFA-1 form on November 18, 2010, requesting a hearing on the issue of her re-attachment to the labor market. The claimant attached a letter from the One-Stop career center showing that she searched through job postings in the office on October 20, 2010, and a workforce specialist indicated that there was nothing that was deemed suitable for the claimant. The claimant also attached a note indicating that she had an appointment with VESID (now ACCES-VR) on October 27, 2010, and medical evidence of her ongoing disability.
In a C-4.2 dated November 30, 2010, Dr. Yadegar, the claimant's orthopedist, indicated that the claimant cannot return to work because she is totally disabled. However, Dr. Yadegar's narrative attached to the C-4.2 states that the "patient cannot return to work because limitations include lifting, operating heavy equipment, and use of upper extremities…the patient's return to work/limitations will be discussed with the patient."
The claimant underwent an independent medical evaluation by the carrier's consultant, Dr. Feuer, a neurologist and psychiatrist, on December 7, 2010. Dr. Feuer opined that claimant demonstrates a mild partial temporary neurological disability, which is causally related to the claimant's accident of November 20, 2007, and that the claimant may engage in light duty employment avoiding lifting greater than 20 pounds.
A hearing was held on February 24, 2011, where the claimant produced a letter from VESID dated December 6, 2010, indicating that VESID received medical evidence that she was totally disabled (the specific evidence is not identified), that VESID couldn't help her until she was able to work, and that she could reapply for services once VESID received medical clearance from her doctor (CIS Doc. Id. # 177218608). The claimant also produced a letter from the Nassau University Medical Center Department of Psychiatry indicating that she was being treated for depression and chronic debilitating pain. The claimant testified that she went to the One-Stop career center and was referred to VESID. The claimant testified that she contacted VESID, but was told there was nothing VESID could do for her and they were closing the case. The claimant testified that beginning on December 7, 2010, she sought employment by looking on-line when she would get a chance to, and in the newspaper. However, the claimant did not keep a record of any job search. Subsequent to October 8, 2010, she did not submit any resumes to potential employers, nor did she fill out any applications or have any interviews.
All the medical reports by claimant's treating medical provider for treatment rendered between Dr. Yadegar's November 30, 2010, report and claimant's February 24, 2011, testimony indicate that claimant has a causally related total disability. In a report dated February 23, 2011, claimant's treating psychologist, Dr. Ioannou stated that claimant "is unable to work due to the pain and the side effects of the medications."
The WCLJ amended the claim to include a consequential depressive disorder; found that the claimant demonstrated her re-attachment to the labor market subsequent to October 8, 2010, the date of the Board Panel decision indicating that the claimant voluntarily withdrew from the labor market; held in abeyance awards for the period from October 8, 2010, to December 7, 2010; awarded compensation from December 7, 2010, to February 24, 2011, at a tentative rate of $100.00 per week; and directed the carrier to continue payments at the tentative rate of $100.00 per week. The WCLJ also directed the parties to complete and submit deposition testimony of the respective medical witnesses. An attorney's fee was granted in the amount of $350.00.
Re-attachment 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; 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; 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).
Active participation at a One-Stop Career Center means calling for an appointment, attending an orientation session; meeting with a One-Stop counselor to develop a resume, registering a resume in the One-Stop system, maintaining contact with the One-Stop Career Center to determine whether there were any job matches, and following-up on all job referrals and matches (id).
The record contains a letter from VESID dated December 6, 2010, indicating that VESID received medical evidence that she was totally disabled, that VESID couldn't help her until she was able to work, and that she could reapply for services once VESID received medical clearance from her doctor. Claimant's participation with VESID was, in effect, placed on hiatus, as of December 6, 2010, pending evidence from her treating physician that she could return to work. As of the February 24, 2011, hearing, claimant's treating physician continued to find her to be totally disabled. Under these circumstances, the preponderance of the evidence supports a finding that claimant demonstrated a sufficient attachment to the labor market by actively participating with One-Stop and VESID, and that her participation with VESID ceased temporarily based on the decision by VESID that it could not provide any services to her until her physician released her to return to work, not because claimant was no longer willing to actively pursue vocational retraining.
However, since the February 24, 2011, hearing, no decision has been rendered with respect to claimant's degree of disability subsequent to October 20, 2010. The record has not been developed with respect to claimant's ongoing labor market attachment after February 24, 2011, (which will only be relevant if claimant is found to be partially, not totally, disabled).
Accordingly, the Full Board finds that the claimant re-attached to the labor market on October 20, 2010, and is entitled to awards through February 24, 2011. The Full Board finds further that awards after February 24, 2011, be held in abeyance and the case returned to the trial calendar for the WCLJ to render a decision on the issue of degree of disability subsequent to October 20, 2010, and to make appropriate awards.
Accordingly, the WCLJ decision filed March 7, 2011, is MODIFIED to find that the claimant demonstrated a re-attachment to the labor market on October 20, 2010; that awards after February 24, 2011, be held in abeyance; and the case returned to the trial calendar for the WCLJ to render a decision on the issue of degree of disability subsequent to October 20, 2010, and to make appropriate awards. The decision remains unchanged in all other respects. The case is continued.