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 December 3, 2010.
The issue presented for Mandatory Full Board Review is whether the claimant remains attached to the labor market.
The Workers' Compensation Law Judge (WCLJ) found that the claimant voluntarily retired and is not attached to the labor market, whereby the claimant had no compensable lost time after May 14, 2009.
The Board Panel majority modified the WCLJ's decision to find that the claimant is not retired for the purposes of the Workers' Compensation Law (WCL) and to rescind the finding of voluntary retirement, but affirmed the WCLJ's finding that the claimant is no longer attached to the labor market due to his failure to search for employment within his medical restrictions.
The dissenting Board Panel member found that the claimant involuntarily retired, and concluded that "the Board may not find voluntary removal from the labor market, as there is an absence of direct and positive proof that the claimant's ongoing disability was solely caused by non-disability factors."
The claimant filed an application for Mandatory Full Board Review on December 29, 2010.
The carrier filed a rebuttal on January 25, 2011.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On May 11, 1993, claimant, then the 42 year old manager of a swimming pool supply store, injured his back lifting a pool heater. This case is established for an injury to the back with an average weekly wage of $369.76. In a decision filed on January 3, 1996, the claimant was classified with a permanent partial disability, the carrier was directed to continue payments at the rate of $100.00 per week, and the case was closed.
The case remained dormant until June 5, 2007, when the claimant's attorney requested a hearing on the issue of a change in condition. At the resulting hearing held on July 6, 2007, the WCLJ brought awards up-to-date at a tentative reduced earnings rate of $100.00 per week, directed the carrier to continue payments at that rate, and marked the case for no further action.
On June 4, 2008, the claimant filed an RFA-1 to request a hearing on the issue of his reduced earnings rate. Attached to this form was evidence that the claimant was entitled to a reduced earnings rate greater than the tentative rate he was paid in 2005 and 2006. At the resulting conciliation hearing on August 28, 2008, the conciliator modified prior awards to reflect the claimant's actual reduced earnings from January 1, 2004, to October 26, 2006, and based upon the claimant's lost time, directed continuing awards at the previously classified rate of $100.00 per week.
On March 26, 2009, the carrier filed an application to reopen the case on the issue of labor market attachment. The Board granted this request in a decision filed on April 17, 2009.
At the hearing held on May 11, 2009, the claimant testified that at the time of his work-related back injury, he managed a swimming pool supply store where his duties included bookkeeping, stocking merchandise, selling supplies, and heavy lifting. After his work injury, he attempted to open up a fishing guide business, but was unable to continue this business due to his back injury. He next took on a newspaper delivery route for about three years, but gave up this job in 1999 in order to take care of his ailing mother. He took care of his mother for two years prior to her passing in 2002. After his mother passed away, he began working for Tri-State Auto Auctions on a part-time basis where his job duties included driving cars and working on a car wash crew. He worked this job on a part-time basis to manage his back disability. While employed, he had trouble getting in and out of all the cars.
Claimant testified that on December 2, 2005, while working for Tri-State Auto Auctions, he suffered a right rotator cuff tear. He continued to work until he underwent surgery to repair his rotator cuff on October 28, 2006. He has not returned to any employment since his surgery. On or around March 21, 2007, his physician released him to return to work with no lifting greater than 10 pounds at or above shoulder level. After being released to return to work with restrictions, he went to his doctor and told him that de did not want to go back to work because of the trouble he had with his neck and back. Despite this belief, he went back to his employer and learned that they did not have any light duty job available. After learning that he could not return to work with his employer, he made no effort to search for employment within his restrictions because he was applying for social security disability benefits. Although he was awarded social security disability benefits, based upon a combination of his non-work-related injuries and his work-related injuries, the Social Security Administration provided him a back-to-work ticket in August 2007 which would allow him to go to VESID for retraining purposes; however, he has not taken advantage of this opportunity.
A review of the Board's records reveals that the claimant's December 2, 2005, injury was indexed as WCB Case # 60603092, and is established for a right shoulder injury. In a decision filed on July 12, 2007, the claimant was awarded lost time at a temporary total rate of $114.33 per week from October 26, 2006, to March 21, 2007. In a subsequent decision filed on January 18, 2008, the claimant was found to have a 37.5% schedule loss of use of his right arm and the case was marked for no further action.
In a decision filed May 14, 2009, the WCLJ suspended awards and marked the case for a reserved decision. On July 14, 2009, the WCLJ issued a reserved decision finding that because the claimant was able to work for Tri-State Auto Auctions despite his permanent partial back disability, he left that job solely due to a separate work-related injury. In addition, the WCLJ found the claimant failed to return to work upon being released to do so by his physician. Based upon these facts, the WCLJ found that the claimant had voluntarily retired. Further, the WCLJ found that the claimant failed to maintain an attachment to the labor market since he failed to search for work within his medical restrictions. As a result, the WCLJ found that the claimant had no compensable lost time after May 14, 2009. The claimant filed a timely application for administrative review in response to the WCLJ's reserved decision.
In his application for Mandatory Full Board Review, the claimant asserts that he has retired from the labor market, that such retirement was involuntary, and that he is entitled to continuing awards for his permanent partial back disability. In addition, even assuming that he did not retire, the claimant asserts the majority's decision is erroneous as a matter of law, and that he is entitled to continuing benefits pursuant to the Appellate Division, Third Department's holding in Matter of Zamora v New York Neurologic Associates (79 AD3d 1471 ), which held that when a claimant stops working due a work-related permanent partial disability, an inference arises that any subsequent wage loss is causally related to that disability, which cannot be rebutted solely by evidence that claimant has failed to look for work.
In Matter of Zamora v New York Neurologic Assoc. ___ NY3d ___, 2012 NY Slip Op 03357 (2012), the Court of Appeals reversed the decision of the Appellate Division and reinstated the Board's finding on the issue of voluntary removal from the labor market. In Zamora, 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, __ NY3d __, 2012 NY Slip Op 03357 ).
There are two aspects to this showing. First, the claimant must show that the work-related disability was the reason for separation from employment. "In reaching its decision on this question, the Board will, of course, consider the circumstances under which claimant originally stopped full-duty work. 'If the Board determines that a workers' compensation claimant has a permanent partial disability and that the claimant retired from his or her job due to that disability, an inference that his or her reduced future earnings resulted from the disability may be drawn'" (Zamora, __ NY3d __, 2012 NY Slip Op 03357 , citing Burns, 9 NY3d 207 ). "An inference of causation may be drawn from the disability-related withdrawal, depending on the nature of the disability and the nature of the claimant's work" (Zamora, __ NY3d __, 2012 NY Slip Op 03357 ). The evaluation and permissible inference is the same "regardless of whether claimant has completely retired from the work force or merely withdrawn from the particular employment in which she was engaged at the time of her accident" (id.). In both instances, "the Board may, but need not, infer that the claimant cannot find a suitable job because of her disability" (id.).
Secondly, the claimant can show that he or she has found "alternative work consistent with his or her physical limitations, or at least [show] reasonable efforts at finding such work…" (id.). This evidentiary burden, if carried, "can prove to the Board that the cause of his or her reduced income is a disability, rather than unwillingness to work again" (id.).
In the present case, whether claimant "retired" due to his permanent partial disability is not dispositive, and the Board may find that claimant's wage loss is due to reasons other than his disability even though he may have retired, or otherwise stopped working, due to his work-related disability.
"[A] central question for the Board to resolve, before awarding wage replacement benefits in a non-schedule 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 NE2d 140, 849 NYS2d 1 ; see Matter of Jordan v Decorative Co., 230 NY 522, 526-527, 130 NE 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)."
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, claimant was employed in a light-duty job, the requirements of which were consistent his work-related back injury, and stopped working in 2006 when he underwent shoulder surgery due to a separate work-related injury. Claimant was released to return to light-duty work in March 2007. The claimant testified he made no effort to search for employment within his restrictions after March 2007 because he was applying for social security disability benefits. Even after the claimant was awarded social security disability benefits, the Social Security Administration provided him a back-to-work ticket in August 2007 which would allow him to go to VESID for retraining purposes; however, he has not taken advantage of this opportunity.
The Full Board finds that claimant did not comply with the standards set forth in American Axle and was not attached to the labor market after being released to return to light-duty work in March 2007.
ACCORDINGLY, the WCLJ decision filed on July 14, 2009, is AFFIRMED insofar as it found that claimant has not shown a sufficient attachment to the labor market to support awards from May 14, 2009, forward. No further action is planned by the Board at this time.