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 August 2, 2011.
The issue presented for Mandatory Full Board Review is whether the claimant has demonstrated an attachment to the labor market.
The Workers' Compensation Law Judge (WCLJ) found that the claimant demonstrated attachment and awarded temporary partial disability benefits for the period from February 1, 2011, to March 21, 2011, and directed the carrier to make continuing payments.
The Board Panel majority reversed the WCLJ decision, found that the claimant voluntarily removed herself from the labor market as of February 1, 2011, and rescinded all awards and the attorney's fee awarded in the March 28, 2011, notice of decision.
The dissenting Board Panel member found that the claimant's job search was sufficient, and that medical records filed after the March 28, 2011, notice of decision indicate that the claimant is totally disabled.
In the claimant's application for Mandatory Full Board Review, she argues that the fact that she registered for One-Stop is sufficient evidence to support a finding of attachment to the labor market. The claimant further argues that she was not required to look for work because her unrelated medical condition combined with her work injury rendered her totally disabled.
In rebuttal, the carrier argues that the claimant did not demonstrate attachment to the labor market because, while she registered for One-Stop, she did not actively participate in the program.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, then a 63 year old fast food worker, suffered a work-related injury when she slipped on a wet floor on January 19, 2010. The claim was established for an injury to the left knee.
Following the work injury, the claimant was treated by Dr. Saunders. On January 20, 2010, Dr. Saunders diagnosed the claimant as suffering from a left knee contusion and twisting injury, and noted that he previously treated the claimant for right knee problems. In a report regarding his April 14, 2010, examination of the claimant, Dr. Saunders noted that the claimant told him that she needed to return to work. Dr. Saunders further noted that the claimant's patellar tendonitis was resolving, she had decent range of motion, and could return to work, using a knee brace if necessary.
The claimant returned to Dr. Saunders on May 25, 2010, complaining that working was causing her knee pain. Upon examination, Dr. Saunders noted mild swelling, but decent range of motion. He diagnosed the claimant as suffering from degenerative joint disease with a knee sprain and told her that she could continue to work.
When Dr. Saunders examined the claimant on June 22, 2010, she told him that she was moving into a senior living complex because of her knee. Dr. Saunders noted mild swelling and irritation, but no ligamentous instability, and opined that the claimant suffered from a 25% disability.
At a July 20, 2010, examination, the claimant told Dr. Saunders that she had given up her job and her house due to her knee injury. Upon examination, Dr. Saunders noted mild swelling and good range of motion, and opined that the claimant suffered from 25% impairment. When the claimant returned to see Dr. Saunders on October 12, 2010, following knee injections, he noted that the claimant's symptoms were better, but she was still sore, and she was stressed due to family problems. He found no obvious defects upon examination and opined that the claimant suffered from a 25% impairment.
The claimant was also examined by the carrier's consultant, Dr. Sellig, on May 4, 2010, and December 28, 2010. At the May 4, 2010, examination, the claimant advised Dr. Sellig that she had returned to work and was experiencing knee pain. Dr. Sellig noted that the claimant had a mild limp, and that a March 2010 MRI showed mild thinning of articular cartilage consistent with early arthritis. Dr. Sellig opined that the claimant suffered from mild osteoarthritis, which was aggravated by the fall, and still needed treatment. At the December 28, 2010, examination the claimant reported to Dr. Sellig that her knee had given out three times, she received no relief from the injections administered by Dr. Saunders, and she was having electrical shock type pains radiating from her knee. Dr. Sellig observed no obvious defect, but mild swelling, tenderness, pain with patellar apprehension, and decreased muscle strength. Dr. Sellig stated that he could not provide an opinion on schedule loss of use because the claimant needed additional treatment for her injuries.
In a notice of decision filed February 7, 2011, the WCLJ established the claim for an injury to the left knee, set the claimant's average weekly wage at $191.42 per week, awarded the claimant benefits from January 20, 2010, to April 15, 2010, at the rate of $120.95 per week, found no compensable lost time from April 15, 2010, to June 22, 2010, awarded benefits from June 22, 2010, to February 1, 2011, and continuing at the rate of $100.00 per week. The WCLJ continued the case for further evidence regarding the claimant's labor market attachment.
The claimant was examined by Dr. Saunders again on February 25, 2011, and complained that the brace he prescribed did not help, but that the electrical shock like pains had resolved. The claimant described herself as retired. Dr. Saunders noted that the claimant's complaints of persistent pain were "out of proportion to physical findings based on her work injury on 01/19/2010."
The claimant testified at a hearing on March 22, 2011, that she never had any leg problems before the January 19, 2010, accident. In regard to her job search activities, the claimant stated that she had been ill with bronchitis "on and off" for four months and had not looked for a job. The day prior to the hearing, the claimant registered with One-Stop and intended to attend a training session for workers with disabilities. She stated that her knee aches constantly and swells if she stands or walks too much, and she fell six times because her knee gave out. The claimant also testified that she quit her job because she couldn't do the work.
At the close of the hearing, the WCLJ found that the claimant's job search was sufficient for continuation of awards, awarded compensation at the rate of $100.00 per week from February 1, 2011, to March 21, 2011, and directed the carrier to continue payments at $100.00 per week. The WCLJ's findings were memorialized in a notice of decision filed March 28, 2011.
The claimant was examined again by Dr. Saunders on April 12, 2011. At that time, Dr. Saunders opined that the claimant was totally disabled, and that she may need a total knee replacement.
A claimant who is temporarily partially disabled must demonstrate an attachment to the labor market to be entitled to continuing compensation benefits (see Matter of Bacci v Staten Is. Univ. Hosp., 32 AD3d 582 ; Matter of Zamora v New York Neurologic Assoc., __ NY3d __, 2012 NY Slip Op 3357 ). 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).
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 ). Furthermore, once the Board finds a voluntary removal from the labor market, the claimant must reattach to the labor market before there is a finding of subsequent causally related lost earnings (see Matter of Bacci v Staten Is. Univ. Hosp., 32 AD3d 582 ).
In the present case, the record indicates that the claimant stopped working for the employer on June 22, 2010. According to the medical records of Dr. Saunders, the claimant suffered from 25% impairment at that time. The claimant continued to have some work capacity when Dr. Saunders examined her on October 12, 2010, and December 9, 2010. However, according to the claimant's testimony, she did not look for work during this time. Although the claimant testified that she was totally incapacitated due to bronchitis during the four months preceding the March 22, 2011, hearing, she did not offer any explanation why she did not search for work between June 22, 2010, and December 2010. The claimant's failure to look for work during this period constitutes voluntary removal from the labor market.
While the claimant registered for One-Stop the day before the hearing, this alone is not sufficient evidence of labor market attachment. Under American Axle, a claimant must not only register with One-Stop, he or she must also actively participate in the program by, among other things, attending an orientation session and meeting with a One-Stop counselor to develop a resume. There is no evidence that the claimant did any of these things. Thus, the Board Panel majority's finding that the claimant did not submit sufficient evidence of attachment to the labor market is supported by the preponderance of the evidence.
Additionally, the fact that the claimant was later found to be totally disabled is not sufficient basis for finding attachment to the labor market. The claimant voluntarily removed herself from the labor market on June 22, 2010, when she failed to look for work after leaving her job with the employer. Thus, the claimant is not entitled to wage benefits until she demonstrates attachment to the labor market (see Matter of Bacci, 32 AD3d 582 ). Accordingly, the Board Panel majority properly rescinded awards after February 1, 2011, despite the fact that the claimant may have been totally disabled from December 2010 to March 2011 due to her unrelated medical condition combined with her work injury, or the fact Dr. Saunders opined that the claimant was totally disabled at the April 12, 2011, examination.
Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant voluntarily removed herself from the labor market as of February 1, 2011, and that she is not entitled to further wage benefits until she demonstrates reattachment to the labor market.
ACCORDINGLY, the WCLJ decision filed on March 28, 2011 is REVERSED. The claimant is hereby deemed to have voluntarily removed herself from the labor market as of February 1, 2011, the award for the period of February 1, 2011, through March 21, 2011, and continuing thereafter and the corresponding attorney's fee are hereby rescinded and the claimant is found to have suffered no compensable lost time during that period. No further action is planned by the Board at this time.