Case # 80408476
Date of Accident: 06/22/2004
District Office: Buffalo
Employer: Aspire of WNY, Inc
Carrier: Human Services Self-Ins Trust
Carrier ID No.: W662035
Carrier Case No.: 008 04 265
Date of Filing of Decision: 06/22/2012
Claimant's Attorney: Jerry A. Gambino, Attorney-at-Law
Panel: Robert E. Beloten

The Full Board, at its meeting held on May 15, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on May 26, 2011.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant remained attached to the labor market as of February 18, 2010.

In a decision filed on April 1, 2010, the Workers' Compensation Law Judge (WCLJ) found the claimant remained attached to the labor market from February 2010 through the March 29, 2010, hearing and directed awards from November 6, 2007, to March 30, 2010, and continuing at the previously established permanent partial disability rate of $121.30 per week. The WCLJ further directed the claimant to submit documentation of her most recent job search to the Self-Insured Employer (SIE) within ten days, and if she did not timely provide this information, the SIE was authorized to suspend payments.

The majority of the Board Panel affirmed the WCLJ's findings because the claimant's testimony and written record of her job search efforts from February 2010 through the date of her testimony of March 24, 2010, evidences the claimant maintained an attachment to the labor market.

The dissenting Board Panel member found that the claimant had not shown a sufficient attachment to the labor market, and that awards should have been discontinued on February 10, [sic February 18] 2010, when the SIE first raised the issue of labor market attachment.

In its application for Mandatory Full Board Review, the SIE requests a finding of voluntary removal from February 18, 2010, onward.

In rebuttal, the claimant contends that she performed an adequate search for work and thus has maintained an attachment to the labor market.

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

FACTS

This case is established for injuries to the claimant's neck and back sustained when the claimant was involved in a motor vehicle accident on June 22, 2004. The claimant's average weekly wage was set at $363.89. Awards were directed at various rates from June 23, 2004 through the August 10, 2007 hearing, at which time the WCLJ noted for the record that the claimant settled her third-party action with consent and received a net third-party recovery in the amount of $16,386.75.

In the following hearing held on November 5, 2007, and pursuant to a signed Stipulation, the claimant was classified with a moderate permanent partial disability and awards were directed from August 10, 2007 to November 6, 2007 and continuing at the PPD rate of $121.30, subject to the SIE's credit against the claimant's net third-party recovery.

The record contains three similar letters the SIE forwarded to the claimant dated December 7, 2007, December 8, 2008, and January 6, 2010, in which the SIE requested information regarding the claimant's job search. The electronic case folder does not contain any claimant response to these letters from the claimant.

On January 19, 2010, the claimant filed a RFA-1 indicating a hearing is necessary to determine whether the SIE's credit had expired and if she is entitled to weekly benefits. In response, the Board held a hearing on February 24, 2010, where the WCLJ continued the case to March 29, 2010, for the claimant's testimony on the issues of labor market attachment and exhaustion of the third-party credit.

The carrier never requested a Board reopening to address voluntary removal, as is required under 12 NYCRR 300.14 and 300.23(d) (see Matter of White v Herman, 56 AD3d 872 [2009]). However, the Board will consider the claimant's testimony when it does occur, as in this case, albeit without a Board order of reopening (see, e.g., Matter of Bobbit v Peter Charbonneau Construction, 85 AD3d 1351 [2011]; Matter of Hester v Homemakers Upstate Group, 82 AD3d 1461 [2011]).

On March 29, 2010, the claimant testified that she last received indemnity payments about two and one-half years ago. Since she last received a compensation payment, she searched for work to the best of her ability. Dr. Ross advised her that her restrictions includes no lifting and no standing or sitting for more than a short period of time. She is basically bedridden or stays on a recliner. She has not applied with VESID (now ACCES-VR). She forwards a copy of her job search efforts to the SIE every month. She looks for work in the newspaper and calls places of employment. She looks for work close to her home because it is difficult for her to drive. Prior to her work accident, she was employed as a rehabilitation worker from 1997 to 2004 where her job responsibilities included bathing and feeding patients and taking patients out on outings and to doctor appointments. Since February 24, 2010, she has looked for work to do from home, called some pizzerias around her house, responded to an Avon advertisement, called a car dealer regarding a sales position, and responded to one advertisement in the Pennysaver, though she did not remember the employer's name. She has not forwarded any information concerning her job search to the SIE since February 2010.

Following the claimant's testimony, the WCLJ found the claimant is sufficiently attached to the labor market and must supply documentation for her job search efforts from February 2010 to date to the SIE within ten days, and if she does not produce this list, the SIE can suspend payments. Pursuant to this finding, the WCLJ directed awards from November 6, 2007, to March 30, 2010, and continuing at the permanent partial disability rate of $121.30 per week and referred the claimant for vocational rehabilitation. These findings were memorialized in a decision filed on April 1, 2010.

At the March 29, 2010, hearing the WCLJ directed the claimant to produce evidence of her job search from February 10, 2010, to March 29, 2010, and further found that if the claimant failed to so produce, the carrier could then suspend benefits. A job search list is appended to the claimant's rebuttal to the application for administrative review, dated March 29, 2010, and faxed to the Board with the rebuttal May 10, 2010.

LEGAL ANALYSIS

The SIE filed an application for Mandatory Full Board Review and argues awards subsequent to February 18, 2010, should be rescinded because the claimant removed herself from the labor market as of this date. In support of this argument, the SIE asserts the claimant, who has a partial disability, did not perform a job search in accordance with the standards set forth in Matter of American Axle, (2010 NY Wrk Comp 80303659). Specifically, the claimant did not provide documentation of a job search since February 2010 and the claimant's testimony regarding her job search since that date is unreliable, uninformative, and not nearly enough to substantiate an adequate job search.

In rebuttal, the claimant contends the WCLJ decision should be upheld based upon her credible testimony that she searched for work within her medical restrictions. The claimant attached a copy of her job search from March 8, 2010, to March 23, 2010, which was previously forwarded to the SIE. This list, which was supplied on the sheet provided by the SIE in its correspondence to the claimant, indicates the claimant called eight potential employers and that she has either not heard back from these employers or there was no work available.

Where a claimant has a permanent partial disability but there has been no finding of involuntary retirement, the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions (Bobbit, 85 AD3d 1351 [2011]; Hester, 82 AD3d 1461 [2011]). Pursuant to American Axle, for a claimant to maintain an attachment to the labor market, the claimant must perform either an independent job search, actively participate in a job-location service, or actively participate in a vocational rehabilitation program.

In this case, the claimant is classified with a permanent partial disability. To find that the claimant maintained an attachment to the labor market, her work search must conform to the standards set forth in American Axle.

The claimant testified that between the February 18, 2010, and March 24, 2010, hearings, she called a couple of pizzerias and responded to an advertisement in the Pennysaver. A review of the claimant's job search list of March 2010 reflects the claimant phoned eight potential employers for work, including one pizzeria. This list was compiled on a form the SIE provided to the claimant which requests the employer's name, address, and phone number, the contact name and how contact with the employer occurred, when the contact with the employer occurred, and the result of such contact. On this form, the claimant provided eight employers she contacted by phone from March 8, 2010, to March 23, 2010, indicating the employer's name, phone numbers, five contact names, and the results of each of the eight contacts. Although this list was not submitted to the Board within ten days of the March 29, 2010, hearing, the SIE did not claim it failed to receive this list within ten days of the March 29, 2010, hearing.

Although the claimant did not file documentation of her job search from December 2007 to February 2010, she testified she forwarded her job search efforts to the SIE on a monthly basis, a fact the SIE has not denied. In regards to her job search after February 2010, the claimant, as noted above, testified to and produced documentation of nine attempts to find employment in March 2010.

Last, the SIE argues the claimant's employment search on March 11, 2011, and March 15, 2011, does not meet the standards of American Axle because the claimant contacted potential employers where no work was available to her. Her job search in March 2011 is not the subject of the current application as the issue at hand is whether the claimant remained attached to the labor market based upon her job search, or lack thereof, from February 18, 2010, to March 29, 2010.

Therefore, because the claimant testified to and provided a documented list of her job search consisting of nine attempts to find employment (the eight phone calls and the response to the written advertisement), the Full Board finds claimant conformed to the standards set in American Axle and remains attached to the labor market.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on April 1, 2010, is AFFIRMED. No further action is planned by the Board at this time.