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, duly filed and served on November 21, 2011.
The issue presented for Mandatory Full Board Review is whether the claimant sustained causally related reduced earnings.
The Workers' Compensation Law Judge (WCLJ) awarded lost wage benefits from January 1, 2007, forward.
The Board Panel majority modified the WCLJ's decision to rescind all awards. The Board Panel majority found that the claimant's reduction in earnings was not due to his disability.
The dissenting Board Panel member would find that the claimant's reduction in earnings was causally related to his disability.
On November 21, 2011, the claimant filed an application for Mandatory Full Board Review, arguing that he sustained a reduction in earning capacity due to his disability.
On January 4, 2012, the carrier filed a rebuttal, arguing that the reduced earnings award was properly rescinded since the claimant's reduction in earnings was due to factors unrelated to the claimant's disability.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, then a 52 year-old corporate bond broker, sustained psychological trauma as a result of being at the site of the terrorist attack at the World Trade Center on September 11, 2001. Claimant began treating with a psychologist, Dr. Consorte, in June of 2002. The claimant filed a claim for benefits (Form C-3, Employee Claim) on December 22, 2008. The carrier filed a Form C-669 on May 22, 2009, accepting liability for the claim. The claim was established for work-related post-traumatic stress disorder (PTSD) by an administrative decision filed August 26, 2009, which became final on September 25, 2009.
At the hearing held on December 14, 2010, the claimant testified that on September 11, 2001, he was working as a corporate bond broker for the employer of record on the eighty-eighth floor of the South Tower of the World Trade Center, and was present in his office at the time of the terrorist attack. He had been working for the employer of record for approximately fifteen months prior thereto. He was compensated with an annual salary of $150,000.00 plus bonuses. The claimant did not work for one month after the terrorist attacks. Then, the employer of record obtained temporary space and told its employees they could return when they were capable. The employer paid the claimant his salary through October of 2001 and then disbanded the brokers. Thereafter, the claimant began working with a group of brokers known as Garban, and began receiving earnings once again in January of 2002. He stayed with Garban for three months, then took a job in Jersey City working for ICAP North America as a corporate bonds broker. He was with ICAP North America for seven to nine months.
The claimant began receiving treatment for psychiatric/psychological problems in December of 2001 because he was feeling depressed, angry, and had difficulty focusing. The claimant began seeing Dr. Consorte twice a week and continues to see him once a week. The claimant could not commute to Jersey City any longer so he obtained a job at Seaboard Security (Seaboard) in Long Island, closer to home, and remained there three to four years. He worked as a corporate bonds broker doing the same type of work as he was doing for the employer of record. Claimant testified that while working at Seaboard he was unable to effectively perform his job because he had difficulty concentrating and did not "have the same capability" (Transcript, 12/14/10, p. 15). The claimant left the employ of Seaboard Security in 2005, and went to work for a company located in Chapel Hill, North Carolina where he was in charge of corporate bonds trading. He testified that he was able to stay in New York mostly, but had to travel to North Carolina on a regular basis. The claimant described the work at that job as a little different and not as high pressured, but because the brokerage firm was located in North Carolina, it "just didn't work out" (Transcript, 12/14/10, p. 15). The claimant testified that he did not want to continue working for the firm in North Carolina for the kind of money he was making. So, after that, he and a couple of other people went to Florida, formed a corporation called RENR, rented office space, and tried to broker bonds like they used to, but that did not work. He and his partners made no money after expenses. The claimant worked in Florida for a little under a year. From there, the claimant tried to "reinvent himself" and took insurance exams to become a financial advisor (Transcript, 12/14/10, p. 16). The claimant then went to work for Ameriprise, his current employer, as a financial advisor, where his earnings are far less than what they were as a corporate bonds broker. The claimant testified he could not continue what he was doing because of his lack of concentration, personal skills, and anger issues. He found it "difficult to deal with people or who didn't agree with [his] views on 9-11 and the war and things like that" and could not communicate effectively. Thus, he could no longer succeed [as a corporate bonds broker] (Transcript, 12/14/10, p. 18). The claimant further testified that his reduction in earnings is not due to the state of the economy because corporate bonds brokers are busier in a depressed economy. The claimant further explained that he could no longer perform as a corporate bonds broker because he was a different person, and could not function the way he needed to without making mistakes and losing a lot of money (Transcript, 12/14/10, p. 19).
On cross-examination, the claimant testified that in addition to working for Carolina Capital in 2008, he was also self-employed as a broker, but disbanded his business, known as RB Launer Consulting, at the end of 2010 because there was nothing going on with it (Transcript, 12/14/10, p. 26). From 2008 through 2010, the claimant did not have any earnings associated with his own business. He began working for Ameriprise in March of 2009. The claimant devoted fifty hours per week to working and building up RB Launer Consulting, until he started working for Ameriprise, and could then dedicate only ten hours per week to his business. The claimant works for Ameriprise full-time, fifty-five hours per week. The claimant receives $10,000.00 per month in long term disability. The claimant was awarded the long term disability dating back from September 11, 2001, until he is 65 years old. The disability benefit would be decreased if his monthly earnings reached a certain level. When he worked for himself, the claimant had no clients. He was devoting 50 hours per week to networking and making a lot of phone calls (Transcript, 12/14/10, p. 36).
When questioned by the judge about the nature of bond brokering, the claimant explained that it was typical for a bond broker to move from company to company every couple of years. As for the job itself, the claimant explained that it consists of "obtaining bids from professional institutional traders and taking those bids and offers to everyone's desk. Then everyone goes to their client and reflects the bidding and offering and hopeful[ly] will get a response and pull the trades together at the desk and make a commission" (Transcript , 12/14/10, p. 41). When the WCLJ asked the claimant whether his mental tasks were any different at the brokerage house he worked under in the years following the terrorist attacks from those he had while working at the employer of record, he responded, "no." The claimant explained that his position as a financial advisor with Ameriprise is totally different from his position as a bond broker in that he deals with individuals other than professional traders, he feels less pressure, and he doesn't have to report to an office. The claimant had treated with a mental health professional prior to 9/11 but not for any difficulty with his job. The claimant testified that Dr. Consorte did not tell him he could not work like he had before [as a bond broker].
Dr. Consorte, the claimant's treating psychologist, testified by deposition on March 17, 2011, that he first saw the claimant on June 24, 2002. Dr. Consorte noted that the claimant was suffering from PTSD with all the associated symptoms, such as, nightmares, difficulty coping with stress, severe avoidance of New York City, buildings, bridges, relationship problems, flashbacks, depression, anger, and agitation. Dr. Consorte has been seeing the claimant on a weekly basis. The claimant discussed his job duties as a bond trader with Dr. Consorte. In Dr. Consorte's opinion, the claimant's condition impacted his ability to work in that it impeded his ability to problem-solve, process complex information, caused him to experience extreme emotions, difficulty in concentrating and focusing, and to be argumentative with co-workers (Transcript, 3/17/11, pp. 8-9). The claimant discussed his position with Ameriprise with Dr. Consorte. In terms of the claimant handling his current job, Dr. Consorte made the analogy that before, the claimant was in the "Major League" and now "he does not play baseball" since now he is in an environment that is much less stressful, and no longer has to make on-the-spot decisions (Transcript, 3/17/11, p. 11). He opined that the claimant's condition is permanent, and that he is moderately disabled. On cross-examination, the doctor testified that the claimant is remarkably better than when he first came in to treat. The doctor acknowledged that the claimant continued to work after 9/11 but added that the claimant was not able to hold those jobs because he ran into difficulties with his symptoms while working at those jobs.
Dr. Fink, the claimant's attending psychiatrist, testified by deposition on March 11, 2011, that he first treated the claimant on April 17, 2009. Dr. Fink indicated in a medical narrative attached to the EC-4NARR form that the claimant, who had been treating with a psychologist since 2002, still struggled with PTSD symptoms, including nightmares and flashbacks, and has anger, anxiety, depressive symptoms and obsessive recurrent thoughts. Dr. Fink indicated that the claimant had no history of any prior psychiatric problems. The claimant did not give Dr. Fink any details about the requirements of his job as a bond broker other than it was a high stress job with constant pressure and multiple interactions with people throughout the day. The claimant told him that he had four jobs from 1970 to 1990 and had five jobs from September 11, 2001, until the present. The claimant told him he was unable to do the jobs he had post 9/11. Dr. Fink found that the claimant had PTSD that was causally related to the events of 9/11. As to the claimant's current state, Dr. Fink testified that the claimant's PTSD still affects his ability to focus and concentrate on tasks that require sustained attention, and that the claimant is still easier to anger than he should be when things remind him of the event, people remind him of the event, and when he sees things on TV or hears things associated with the event. He is not as close to his family as he once was because there is some emotional numbing and he has sleep disturbances. As of the date of the deposition, Dr. Fink had treated the claimant thirteen times, and has prescribed him medication. Dr. Fink did not know with certainty whether the claimant was capable of performing the job of bond broker as of the current date. On cross-examination, Dr. Fink conceded that there are stressors that affect individuals during the various stages of life, including being close to retirement age and being a business owner.
The record contains a summary of claimant's earnings from 2000 to 2010 (doc. #174376652). The summary indicates that claimant's income fluctuated greatly from quarter to quarter. In 2003, 2004 and 2006, claimant earned, on average, more than $3,000.00 per week working as a bond trader for Seaboard and Newedge USA LLC. The summary is incomplete with respect to 2005, indicating that claimant earned $14,609 in the second quarter and $10,965 in the fourth quarter of that year, but contains no information with respect to the first and third quarters.
The carrier's consulting psychiatrist, Dr. Miskin, testified by deposition on March 10, 2011, that he examined the claimant on May 18, 2010, and received a history of the claimant's work-related incident. Dr. Miskin performed a mental status examination, the result of which indicated the claimant has PTSD of mild severity. Dr. Miskin opined that since the claimant was working, he saw no need for restrictions. On cross-examination, Dr. Miskin conceded that he was not familiar with the duties of a bond broker nor was he familiar with the claimant's job duties at Ameriprise. Dr. Miskin also indicated that the claimant told him he had been struggling with his job duties [as a bond broker] for the past nine years.
By a decision filed on December 21, 2010, the WCLJ continued the case on the issue of average weekly wage and causally related reduced earnings. The WCLJ, among other things, directed the claimant to produce documentation for a partnership entity, RENR, and documentation concerning his income in 2005.
A hearing was held on March 22, 2011. The claimant testified to his adjusted gross income for 2007 forward, and requested an award for reduced earnings. In a decision filed on March 29, 2011, the WCLJ classified the claimant with a permanent partial disability; indicated that the claimant had a 25% permanent impairment; found that the claimant had reduced earnings; set the claimant's average weekly wage at $2,640.28 per the parties' agreement; found there was no compensable lost time to render awards for the period from September 12, 2001, to January 1, 2007; awarded compensation from January 1, 2007, to March 23, 2011, at a reduced earnings rate of $400.00 per week; and directed the carrier to continue payments at the tentative rate of $400.00 per week. An attorney's fee was granted in the amount of $20,000.00.
"[A] claimant's work-related permanent partial disability allows an inference that a subsequent loss of wages is attributable to physical limitations (see Matter of Phillips v Elmira City School Dist., 178 AD2d 793 ; Matter of Haibel v C.G. Haibel, Inc., supra, at 679)" (Matter of Coyle v Intermagnetics Corp., 267 AD2d 621 ). However, in Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 (2012), 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.)… "'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)" (id.).
Here, the record reflects that after September 11, 2011, claimant returned to work as a bond trader in early 2002, doing the same work he did prior to September 11, 2001. He worked for several different employers in 2002, including a firm in Jersey City, New Jersey, which he left because the commute from his home in Long Island was too long. He then began working for Seaboard as a bond trader in early 2003. Claimant testified that while working at Seaboard he was unable to effectively perform his job because he had difficulty concentrating and did not "have the same capability." However, the record reflects that claimant worked for Seaboard for approximately four years, and while his earnings fluctuated from quarter to quarter, he typically earned in excess of his average weekly wage of $2,640.28 per week. Claimant never testified why he left Seaboard, and there is no medical evidence reflecting that a health care provider recommended that claimant stop working as a bond trader at that time. After leaving Seaboard, claimant worked for several different employers, both in the bond trading industry and in other capacities, ultimately becoming a financial advisor, earning less than his average weekly wage. It appears from the record that claimant stopped working as a full time bond trader in 2007. Claimant testified that it was typical for bond traders to move from firm to firm every few years.
Claimant has treated consistently with Dr. Consorte since 2002 for PTSD. None of Dr. Consorte's reports from the time that claimant stopped working as a bond trader reflect a change in claimant's symptoms or a worsening of his condition, or that claimant had difficulty concentrating. None of those reports suggest that claimant was unable to perform his job as a bond trader.
Based upon a review of the record and the preponderance of the credible evidence, the Full Board finds that claimant's established PTSD did not prevent him from continuing to work as a bond trader earning in excess of his average weekly wage, and that his reduced earnings from 2007 forward are not causally related to his disability.
Accordingly, the WCLJ decision filed on March 29, 2011, is MODIFIED insofar as the benefit award for the period of January 1, 2007 through March 23, 2011, and continuing, as well as the corresponding attorney's fee, is hereby rescinded and is replaced with a finding of no compensable lost time on the basis that the claimant's reduction in earnings was not due to his compensable disability. In all other respects, the decision remains in effect. No further action is planned by the Board at this time.