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 May 17, 2011.
The issue presented for Mandatory Full Board Review is whether the claimant remained attached to the labor market subsequent to July 13, 2010.
By decision filed on August 5, 2010, the Workers' Compensation Law Judge (WCLJ) awarded the claimant compensation from May 5, 2010, and continuing at a $100.00 weekly rate.
In a Memorandum of Decision filed on May 17, 2011, the majority found that the claimant submitted sufficient evidence that she was attached to the labor market during the period from December 1, 2009, to July 13, 2010, such that the award for that period was proper. However, the majority further found that pursuant to the Board's decision in Matter of American Axle (2010 NY Wrk Comp 80303659), the claimant has not demonstrated an attachment to the labor market subsequent to July 13, 2010, and rescinded awards after that date.
The dissenting Board Panel member would have found that the claimant has not shown a sufficiently sustained and persistent search for work subsequent to December 1, 2009, to show a continuing attachment to the labor market subsequent that date, and awards subsequent to December 1, 2009, should be rescinded.
In her application for Mandatory Full Board Review, filed on May 20, 2011, the claimant contends that the Board Panel decision must be reversed. The claimant contends that since the record supports that the claimant stopped work due to her compensable injury, she is entitled to an inference in favor of benefits, which cannot be defeated by an employer merely by alleging a lack of work search, citing the Appellate Division, Third Department's decision in Matter of Zamora v New York Neurologic Assoc. (79 AD3d 1471). The claimant further contends that the Board Panel erroneously concluded that the claimant's work search was inadequate.
The Group Self-Insurance Trust (GSIT) filed a rebuttal to the claimant's application on May 31, 2011, contending that as the dissenting opinion is in favor of the GSIT, the claimant's application for administrative review is discretionary and not mandatory, as the dissenting opinion was not a ruling in favor of the claimant's position. The GSIT further contends that the majority's decision is supported by the record and should not be disturbed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On February 18, 2008, the claimant, a home health aide, was injured as a result of falling down steps. The case is established for work-related injuries to the claimant's back, right arm, right hip, and right leg. The claimant's average weekly wage was set at $314.49. The claimant has not been classified with a permanent disability.
By a decision filed on February 9, 2010, the WCLJ made awards for the period from October 7, 2009, to February 5, 2010, and continuing at a $100.00 tentative rate, and referred the claimant to the Office of Vocational Rehabilitation.
In the Board file is a Form WER-17(Rehabilitation Report) dated March 24, 2010, referring the claimant to Queens Work Force 1 Career Center.
By decision filed on May 6, 2010, the WCLJ authorized the carrier to discontinue the claimant's payments, based on a lack of up-to-date medical evidence.
On June 28, 2010, the claimant's treating orthopedist, Dr. Reddy, resumed submitting medical reports, starting with treatment rendered on April 28, 2010. Starting with reports dated August 13, 2010, Dr. Reddy specified that the claimant cannot return to her regular work because her back condition prevented her from lifting patients. As of the March 24, 2011, examination, Dr. Reddy indicated that the claimant was working limited duty at a different job, four hours per day.
At the August 2, 2010, hearing, prior to the claimant's testimony, the parties agreed that the medical evidence was reflective of a mild partial disability, that there was no need for medical testimony, and that claimant's testimony was needed on the issue of labor market attachment. The claimant testified on August 2, 2010, that she has not returned to work since her February 13, 2008, work accident. However, she has looked for work and made a record of her job search. [While the hearing minutes show that during her testimony she submitted a list of employers whom she contacted, the list is not contained in the Board file.] Her treating physician, Dr. Reddy, told her that she cannot return to her previous employment as a home health aide, but due to the way she feels she can work in a light duty position. She agrees that she cannot return to work as a home health aide but she can perform light duty work. She started to look for work in December 2009. She first contacted a company named Life Spire by telephone. She had an interview with them in January 2010 for a home aide position. She was eventually told that in order to work for them she needed a note from her doctor indicating that she did not have any work restrictions. On January 10, 2010, she contacted Union Settlement regarding a clerical position via phone and internet, and was told that there were no jobs available. On January 14, 2010, she contacted Career Opportunity and Woman in Need. She has not heard from either of those companies yet. On January 18, 2010, she contacted VM Direct for a security guard position. She was told that they would put her application on file. On July 13, 2010, she contacted another potential employer about security work, but they never called her back. After July 2010, she has not looked for work with any specific employer, although she has looked on the internet at home health aide jobs. She met with the Board's Office of Vocational Rehabilitation and was advised to prepare her resume and go to a Work Force 1 Career Center. However, she never participated with Work Force 1.
At the conclusion of the claimant's testimony, the WCLJ implicitly found that the claimant was attached to the labor market and made awards to the claimant from May 5, 2010, to date, and continuing at a $100.00 weekly rate. The WCLJ's findings were memorialized in a decision filed on August 5, 2010.
Mandatory versus Discretionary Full Board Review
Workers' Compensation Law (WCL) § 23, in pertinent part, states
"if the decision or determination was that of a panel of the board and there was a dissent from such decision or determination…, any party in interest may within thirty days after notice of the filing of the board panel's decision with the secretary of the board, make application in writing for review thereof by the full board, and the full board shall review and affirm, modify or rescind such decision or determination in the same manner as herein above provided for an award or decision of a referee."
The Full Board finds that pursuant to WCL § 23, since the Board Panel decision contained a dissent, the claimant's application was a request for Mandatory Full Board Review, despite the fact that the application was not supported by the dissent's position.
Attachment to the Labor Market
In Matter of Zamora v New York Neurologic Assoc. (19 NY3d 186 ), the Court of Appeals held that the Board is not required to "infer, from the finding that a claimant withdrew from her employment due to an accident at her work place, that her post-accident loss of wages is attributable to physical limitations caused by the accident" (id.). For a non-scheduled permanently partially disabled claimant, "a central question for the Board to resolve, before awarding wage replacement benefits … is 'whether a claimant has maintained a sufficient attachment to the labor market' (Burns v Varriale, 9 NY3d 207 ; see Matter of Jordan v Decorative Co., 230 NY 522 )" (Zamora, __ NY3d __, 2012 NY Slip Op 03357 ). This initial showing is claimant's burden. '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)" (Zamora, 19 NY3d 186 ).
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).
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 ).
Insofar as the claimant testified and submitted evidence regarding her search for work between December 2009 and July 13, 2010, along with the fact that the GSIT is not disputing the majority's finding that the claimant remained attached to the labor market between December 2009, and July 13, 2010, there is no reason to disturb the majority's finding that the record supports that the claimant was attached to the labor market from December 1, 2009, to July 13, 2010, such that the award for that period was proper.
The sole issue remaining is whether the claimant has remained attached to the labor market subsequent to July 13, 2010.
The claimant contends that awards were erroneously rescinded subsequent to July 13, 2010, based on the determination that the claimant was not attached to the labor market after that date.
The Full Board finds, upon review of the record and based upon a preponderance of the evidence, that as the claimant testified that she has not worked or looked for work within her restrictions subsequent to July 13, 2010, or participated in any reemployment services, the record supports a finding that she has not demonstrated an attachment to the labor market subsequent to July 13, 2010, and therefore, is not entitled to awards after July 13, 2010.
However, the claimant's attorney submitted a Form RFA-1LC (Request for Further Action By Legal Counsel), on February 23, 2012, and April 13, 2012, indicating that the claimant is working at reduced earnings, and attached two paystubs. Therefore, the Full Board finds that the case should be returned to the trial calendar to determine if the claimant sufficiently reattached to the labor market and is entitled to awards.
ACCORDINGLY, the WCLJ decision filed on August 5, 2012, is MODIFIED to find that as of July 13, 2010, the claimant had not maintained an attachment to the labor market, and to rescind all awards after that date. The case is returned to the trial calendar to determine if the claimant sufficiently reattached to the labor market and is entitled to awards. The case is continued.