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 November 8, 2011.
The issue presented for Mandatory Full Board Review is whether the claimant has presented sufficient evidence of his attachment to the labor market.
In a decision filed on November 16, 2010, the Workers' Compensation Law Judge (WCLJ) made awards for the period from October 18, 2010, to November 12, 2010, and continuing, at the temporary partial rate of $183.33 per week; awarded a fee in the amount of $90.00 to the claimant's attorney; referred the claimant for a vocational rehabilitation evaluation; and continued the case on the issues of degree of disability and further causally related disability.
In a Memorandum of Decision filed November 8, 2011, the Board Panel majority affirmed the WCLJ's decision, concluding that the claimant's loss of earnings is due to his work-related disability.
The dissenting Board Panel member would have reversed the WCLJ's decision and found no compensable lost time after October 18, 2010, since the claimant's efforts do not show that he actively participated in a job search.
In its application for Mandatory Full Board Review filed on November 17, 2011, the carrier requests that the opinion of the dissenting Board Panel member be adopted by the Full Board.
In a rebuttal filed with the Board on December 15, 2011, the claimant requests that the opinion of the Board Panel majority be affirmed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This claim is established for injuries to the head, neck and back that resulted from an accident on June 19, 2009, while claimant was working as a stage hand. Awards were previously made at various rates for various periods of lost time.
In a decision filed on October 14, 2010, the WCLJ directed the carrier to continue payments at the temporary partial rate of $183.33 per week, noted that the carrier had raised the issue of attachment to the labor market, and continued the case.
At a hearing on November 10, 2010, the claimant testified that he is not currently working, but that he went to Tomorrow's Workplace to look for work. He has been looking for work since the date of the accident. He has a card with the name of the person he has been working with at Tomorrow's Workplace (it does not appear that a copy of the card was admitted into evidence at the hearing). She helps him look for work on the computer. He has no evidence of applications that he has sent to employers because "it is all online" (Hearing Transcript, 11/10/10, p. 3). He has only looked for work at Tomorrow's Workplace.
Based on the claimant's testimony, the carrier objected to continuing benefit payments. The carrier argued that the testimony is insufficient to show that the claimant is actively seeking employment and the claimant has the burden to look for work within the restrictions of his partial disability. The carrier contended that solely looking for work online is not sufficient.
The WCLJ asked whether the claimant had been interviewed by a vocational rehabilitation specialist and the claimant indicated that he had not. The WCLJ then referred the claimant to a vocational rehabilitation specialist, and directed the carrier to make awards from October 18, 2010 to date, and continuing, at the temporary rate of $183.33 per week.
The WCLJ's findings were set forth in a decision filed on November 16, 2010.
A partially disabled person need only seek employment within his or her medical restrictions (Matter of Sanchez v Consolidated Edison Co. of N.Y., Inc., 40 AD3d 1153 ) and for which he or she is qualified (see Matter of St. Francis Constr. Co., 2009 NY Wrk Comp 30705539).
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).
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).
Here, the claimant testified that he has been looking for work by searching on the computer for jobs at Tomorrow's Workplace. However, during his testimony, he was unable to provide names of any of the employers where he looked for work. Without this specific information, there is insufficient evidence to determine whether the claimant's participation with Tomorrow's Workplace was in fact "active" as required by American Axle. Further, as noted above, although active participation with a job-location service is one of the ways that the claimant can demonstrate attachment to the labor market, the claimant is required to present "credible documentary evidence" to support his claim of attachment to the labor market, and during the claimant's testimony, he conceded that he had no documentary evidence of his work search efforts.
Therefore, the Full Board finds that there is insufficient evidence in the record to show that the claimant actively participated in a job search.
Accordingly, the WCLJ decision filed on November 16, 2010, is MODIFIED to rescind the awards and the attorney's fee, to find that awards from October 18, 2010, forward are held in abeyance, and to direct the claimant to produce documentary evidence of his participation with a job-location service. The case is continued.