The Full Board at its meeting on November 14, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision (MOD) filed January 3, 2012.
The issue presented for Mandatory Full Board Review is whether the claimant has maintained a sufficient attachment to the labor market subsequent to February 18, 2011.
The Workers' Compensation Law Judge (WCLJ) determined that the claimant's cessation of employment in January 2011 was involuntary and that he has maintained a sufficient attachment to the labor market. The WCLJ made awards from February 18, 2011, forward.
The Board Panel majority initially concluded that the issue of whether the claimant's cessation of employment in January 2011 was involuntary is not dispositive of the issue of claimant's labor market attachment subsequent to February 18, 2011. The Board Panel rescinded all awards from February 18, 2011, forward based on the claimant's failure to produce sufficient evidence of attachment to the labor market for that period.
The dissenting Board Panel member determined that the claimant has offered sufficient evidence of an attachment to the labor market as of February 18, 2011, and would affirm the WCLJ's decision.
In its application for Mandatory Full Board Review, the claimant contends that the Board Panel majority improperly based its finding that he was not sufficiently attached to the labor market on the lack of supporting documentary evidence. Claimant argues that the Board may rely on testimony of the claimant with respect to his participation with One Stop on the issue of labor market attachment, and that the Board has previously concluded in Matter of Classic Bindery Inc., 2011 NY Wrk Comp 00215031, that documentary evidence is not required in order to demonstrate active participation in One Stop.
In rebuttal, the carrier asserts that the claimant's testimony is not credible, that he failed to submit documentary evidence of his work search efforts as required under Matter of American Axle, and a finding of no labor market attachment is required.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This case is established for a work-related injury to the claimant's back that occurred on April 18, 2010, while employed by Advance Auto Parts.
By decision filed on January 10, 2011, the WCLJ, among other findings, held the period of November 23, 2010, through January 5, 2011, in abeyance on the question of causally related reduced earnings.
In an RFA-1 (Claimant's Request for Further Action) form filed on February 9, 2011, the claimant's attorney sought a hearing, stating that the claimant is not working and is not receiving benefits.
By a decision filed on April 25, 2011, the WCLJ, among other findings, continued the case for testimony of the claimant on the issue of whether his separation from employment was causally related to the established back injury.
The claimant testified at a hearing held on May 24, 2011, that he stopped working at Advance Auto Parts on August 28, 2010, due to severe back pain. When he returned to work on his next scheduled shift he was terminated with no explanation. He commenced employment with LKQ on November 23, 2010, but could not perform the required duties of this job due to his causally related back condition. He missed three to four weeks of time from work, and as a result, his employment with this employer was terminated on January 21, 2011. The claimant also testified that he applied for and is currently receiving unemployment benefits. He has registered with One Stop and has worked with several One Stop counselors. He has a five-pound lifting restriction with no bending, lifting or climbing ladders. Claimant testified that he applied for a security position at Securatist, but could not take the job because he does not presently have the required license. He applied at Verizon for a small counter job within his restrictions. He applied at Advance Auto Parts and is in the process of reapplying for a counter position with Auto Zone. He is putting together an application to American Best for a small counter position. He interviewed with Kohl's, but was told that he failed the written exam. He informs all prospective employers about his work restrictions. The claimant testified that he is still treating with Dr. Andrejuk, who has prescribed back injections, muscle relaxers, and pain relievers to no avail. He last saw Dr. Andrejuk on May 13, 2010, and is currently awaiting a follow up visit with him. He did not bring documentary evidence of his job search. When asked what documentation he had of his job search, claimant explained that he has "online files", as a majority of his applications were submitted on-line.
On cross-examination, the claimant testified he could not function at his job with Advance Auto because he could not adhere to his work restrictions. His job duties at LKQ did not require any lifting. He was treating with his doctors at the time he started his employment with LKQ. In the two months that he worked at LKQ, he was out of work for three-to-four weeks due to his causally related back condition. He would treat with his doctors during times he was out of work with LKQ. He has not worked since January 21, 2011. He registered at One Stop shortly after January 21, 2011. He has documentation at home regarding the individuals he has dealt with at One Stop. He was given a computer password by One Stop so that he could utilize their computer system. He returns to One Stop once a month to attend scheduled appointments. At those appointments he provides a list of the places he has searched for work, but he did not have a copy of the list with him, but would provide it later. He could not recall the date that he interviewed with Securatist, or who he interviewed with at Securatist. He testified that he applied for a job with Verizon Wireless on-line about a week and a half earlier, but has not heard back from them. His application at Auto Zone is presently pending. He applied to Kohl's about three weeks ago. He applied to Big Lots on-line about four days ago. He obtained an application for employment as a counter person with American Best and is in the process of applying there. He could not recall all of the places that he applied to since he was let go from his employment with LKQ, but that he had testified regarding most of them. He was given a five-pound weight restriction by doctors at the Bone and Joint Center. He has not engaged in any re-training with VESID. He was making more at LKQ than he was previously with Advance Auto Parts.
In a decision filed May 28, 2011, the WCLJ directed carrier to depose Dr. Andrejuk and submit the transcript of his testimony, referred the claimant to the Board's Vocational Rehabilitation Division and directed the claimant to produce copies of documentation of his job search within 20 days. The Board file contains no indication that the claimant timely complied with the direction that he submit documentation of his job search.
At a deposition held on June 20, 2011, Dr. Andrejuk, claimant's attending pain management physician, testified that he first treated claimant on February 18, 2011, for his work related back injury. According to Dr. Andrejuk, claimant is markedly partially disabled due to his work-related back injury. The claimant is capable of working with restrictions on bending, twisting, climbing stairs or ladders, kneeling, no lifting over ten pounds, no sitting or standing for more than ten to fifteen minutes at a time, with pushing and pulling limited to ten to fifteen pounds. The doctor testified that his examinations of the claimant subsequent to February 18, 2011, do not show any significant changes and that the claimant is in need of further causally related medical treatment.
In an IME -4 (Practitioner's Report of Independent Medical Examination) dated and filed on December 2, 2010, the carrier's consulting occupational medicine physician, Dr. Belmonte, opined that that the claimant has no disability due to his April 18, 2010, back injury and requires no additional medical treatment. The testimony of Dr. Belmonte was waived by the claimant.
In a reserved decision filed on July 28, 2011, the WCLJ determined that the claimant's cessation of employment with LKQ Broadway Used Auto Parts (LKQ) was involuntary and that he has maintained a sufficient attachment to the labor market thereafter under the Board's holding in Matter of American Axle, 2010 NY Wrk Comp 80303659 based on his registration and participation with One Stop and his applications with multiple prospective employers. The WCLJ also concluded that the claimant has a marked partial disability due to his work-related back injury, cannot work without restrictions and needs further treatment due to his injury. The WCLJ made awards from February 18, 2011, to July 26, 2011, at the marked partial disability rate of $163.75 per week, and directed the carrier to continue payments at that rate.
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). "Documentary evidence that a claimant is actively participating in the services provided by a One Stop office in order to return to work within his or her restrictions is evidence of an attachment to the labor market" (id.).
The Full Board initially finds, upon review of the evidence of record, that the issue of whether the claimant's cessation of employment as of January 21, 2011, was voluntary need not be addressed as the award period in question is from February 18, 2011, forward. As such, the Board need not resolve the issue of whether the claimant credibly testified with respect to his treatment with medical providers between November 23, 2010 and January 21, 2011. Consideration by the Board of the untimely filed written statement of the claimant's supervisor concerning his understanding of the claimant's reason for separating from employment also is not required. Whether the claimant voluntarily or involuntarily ceased employment with LKQ is of no moment with respect to the ultimate finding as to the claimant's subsequent attachment to the labor market, as the claimant, who is only partially disabled, had a duty to seek work within his restrictions (see Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 ).
The Full Board further finds, upon review of the evidence of record, that the claimant has failed to produce sufficient evidence of attachment to the labor market for the period in question. While the claimant credibly testified that he applied to multiple employers between February 18, 2011, and May 24, 2011, he failed to produce any documentary proof of such a search as required in Matter of American Axle. The claimant was given an opportunity produce such evidence following the May 24, 2011, hearing, but failed to do so. The only documentary evidence of the claimant's job search was filed by the claimant's attorney on February 4, 2012, and covers a period (December 14, 2011 to January 12, 2012) outside of the one presently in dispute. The claimant also credibly testified that he registered at One Stop shortly after January 21, 2011, has seen several different counselors there, and has gone to One Stop every month and "Basically, I give them a sheet of all the jobs I applied for in my restrictions" (Transcript, 5/24/11 Hearing, p. 12). However, claimant never submitted any documentary evidence of his participation with One Stop as required by Matter of American Axle.
Therefore, the Full Board finds that claimant has failed to produce sufficient evidence of attachment to the labor market.
Accordingly, the WCLJ reserved decision filed on July 28, 2011, is MODIFIED in order to rescind awards for the period from February 18, 2011, through July 26, 2011, and continuing, based on the claimant's failure to maintain a sufficient attachment to the labor market, and the awarded attorney's fee. The decision is AFFIRMED in all other respects. No further action is planned by the Board at this time.