The Full Board, at its meeting on October 16, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on October 6, 2011.
The issues presented for Mandatory Full Board Review are:
In a decision filed on January 26, 2011, the Workers' Compensation Law Judge (WCLJ) found that the claimant was warranted in refusing the employer's light duty job offer and that the claimant was entitled to benefits per her classification based on the holding in Matter of Zamora v New York Neurological Assoc., 79 AD3d 1471 (2010).
The Board Panel majority modified the WCLJ's decision by finding the claimant was not entitled to benefits based on the holding in Zamora, but upon an active independent search for work within her restrictions.
The dissenting member would find that the claimant's refusal of the light duty position offered by her employer along with the claimant's record of limiting her job search to employers who have indicated that they have no openings, provides sufficient evidence of the claimant's voluntary withdrawal from the labor market.
In its application for Mandatory Full Board Review filed on November 4, 2011, the self-insured employer (SIE) argues that the claimant's unreasonable refusal of the employer's light duty job offer constituted her voluntary removal of the labor market and that the claimant's efforts to search for a job did not meet the requirements for reattachment to the labor market.
In a rebuttal filed on November 30, 2011, the claimant argues that the majority opinion should stand as it is based upon the proper interpretation of applicable law.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On February 27, 2003, claimant, then a 22 year-old clinical assistant at a medical center, was injured while assisting a patient. This case was established for injuries to the claimant's low back.
In 2005, the claimant underwent a bilateral laminectomy, discectomy, and posterolateral fusion with pedicle screws, cages and plates; in 2006, the hardware was removed because it was irritating a facet joint. Both surgeries were performed by Dr. Kung, a neurosurgeon. The claimant has Type 1 diabetes. The claimant returned to work for the employer in February 2006, not in her former capacity as a clinical assistant, but as a unit clerk, considered a lighter duty position, at reduced earnings.
Claimant continued to work for the employer without lost time or reduced earnings from May 26, 2007, to November 19, 2009, when she was taken out of work by her treating physician, Dr. Rizk, due to her back condition.
By letter dated April 28, 2010, the employer extended the claimant a job offer for a Unit Clerk position that it indicated accommodated the claimant's restrictions. The letter included a detailed job description of "light and clerical" duties and responsibilities. By letter dated May 3, 2010, the claimant's attorney sent the employer a reply indicating that the claimant had spoken with representatives of the employer on April 30, 2010, at which time such representatives told the claimant there was no such thing as a "light duty" Unit Clerk position and that the claimant would not be able to perform this position if she had any work restrictions. Therefore, the claimant concluded that the employer could not accommodate the claimant's restrictions.
By a decision filed May 24, 2010, the claimant was classified permanently partially disabled at a marked rate of 75%. The WCLJ marked the case "no further action planned by the Board at this time."
On May 28, 2010, the SIE filed a request for re-opening to consider the issue of voluntary removal from the labor market. In a Memorandum of Decision filed July 19, 2010, the Board Panel granted the carrier's request to re-open the case and returned the cause to the trial calendar "on the issue of voluntary withdrawal from the labor market based upon the claimant's failure to accept a light duty job offer."
At the hearing held on September 24, 2010, the claimant testified that she worked as a clinical assistant for the employer when she was injured in 2003. After having back surgery in 2005, and a subsequent one year leave of absence, the claimant returned to work for the employer as a unit clerk, a position considered lighter duty than clinical assistant, in February 2006. The claimant has Type 1 diabetes. The claimant stopped working at the end of 2009 when her treating physician took her out of work. After receiving the job offer dated April 28, 2010 from her employer, the claimant contacted her supervisor on April 30, 2010, and informed her that the job offer she had received from the employer "was the same job description that I had before [as a unit clerk], it was not light duty and the physical demands I could not do." (p.16). The claimant indicated that the supervisor told her she would be expected to work a full clerk load and there would be no exceptions. According to the claimant, the job demanded lengthy periods of sitting, working through coffee and meal breaks, working under stressful situations, direct patient care, and handling heavy equipment. The claimant explained to the supervisor that she could not perform these tasks. The supervisor transferred the claimant's call to a human resources representative (HR Rep.). The claimant went in to speak to the HR Rep. The claimant advised the HR Rep. that she was unable to meet the demands listed in the job offer.
Claimant further testified that she thereafter continued to look for work within her restrictions. (p.18). To the claimant's knowledge, Dr. Kung imposed the following restrictions upon her: no bending, no sitting for more than fifteen minutes at a time, and a five pound weight lifting restriction. The claimant also noted that Dr. Rizk never said it was okay to return to work, and that Dr. Rizk was uncomfortable with the claimant going back and forth to work because of her diabetes/blood sugar and because she put the claimant on a morphine pain patch. The claimant did not know whether Dr. Rizk had an opportunity to review the light duty job description. Dr. Rizk works for the employer herein. The claimant never spoke to any of her doctors concerning the light duty job offer. The claimant stated she has continued to look for work since refusing the light duty job offer on April 30, 2010. She provided a list of thirteen businesses that she called based on their proximity to her home to inquire whether they were hiring. The list was entered into evidence as Exhibit #3. The list consists of the day and month of the contact, the name of the employer, the name and telephone number of the person with whom employment was discussed and the response of the potential employer. There are 2-3 entries for each of the following dates: August 25, 2010, August 27, 2010, September 3, 2010, September 9, 2010, September 17, 2010 and September 22, 2010. The claimant did not get any callbacks or interviews, nor did she follow-up with any of the businesses because all of them indicated they were not hiring. She did not submit any written applications because either the jobs were not within her restrictions, or the employer was not hiring. The claimant's perception of the ideal light duty job position is answering phones and sending faxes. The claimant stated that she continues to look for work, and is registered with the CSS (Chemung, Schuyler, and Steuben Counties) Workforce New York to do job searches through the Department of Labor. She never registered with VESID.
The employer's Human Resources Representative also testified at the hearing held on September 24, 2010. She testified that in a letter dated November 24, 2009, she sent claimant a letter requesting the claimant bring a Return to Work Capabilities Evaluation for Dr. Rizk to complete upon her next visit to Dr. Rizk. Dr. Rizk is copied on the letter. The Human Resources Representative received a completed evaluation form from Dr. Rizk. The evaluation form completed by Dr. Rizk indicated the following: in an 8 hour workday, the injured worker may sit, stand, walk frequently (3-5 hours), may do sedentary lifting up to 10 lbs. and may carry items up to 10 lbs. occasionally (1-3 hours). The worker may push, pull, and perform repetitive movements occasionally (1-3 hours), reach frequently (3-5 hours) and grasp continuously (5-8 hours), but may not twist, climb, balance, stoop, kneel or crawl.
Upon being re-called to testify, the claimant testified that she did not live at the address indicated in the letter and denied ever receiving the letter from the SIE requesting an evaluation from Dr. Rizk. Nevertheless, the letter dated November 24, 2009, from the SIE to the claimant and the completed form from Dr. Rizk were entered into evidence as Exhibits.
At the hearing held on November 22, 2010, the claimant's supervisor testified that she was aware that a Return to Work Capabilities Form had been sent to the claimant. She was also in receipt of the form completed by Dr. Rizk. Upon receiving the completed form, the supervisor prepared a letter dated December 11, 2009, to the claimant indicating the employer had reviewed the evaluation form and that it "will be able to accommodate the claimant's restrictions as your role as a Unit Clerk is not physical." The letter also indicated that the employer had made attempts to call the claimant and asked her to contact the supervisor so that she can be returned to the next schedule. The letter from the supervisor to the claimant was marked as Exhibit #7. The supervisor stated that not having heard from the claimant, she sent a follow-up letter dated April 28, 2010, to the claimant which included the job description. The supervisor explained that the position of a Unit Clerk offered to the claimant required sitting at a nurse's station in the maternity ward and greeting visitors, answering telephones, performing data entry and records maintenance, operating the copy and fax machines and entailed physical demands no greater than reloading a ream of paper in the copy machine. The supervisor noted the presence of ten other staff members to help the claimant complete any task outside of her restrictions. The supervisor further testified that the employer agreed to accommodate all physician-imposed restrictions, including the four hour per day work limit, and that this was communicated to the claimant.
In a decision filed on January 26, 2011, on the issue of the claimant's attachment to the labor market, the WCLJ concluded that:
"The claimant has not voluntarily removed herself from the labor market based on the legal inference established by Zamora v New York Neurologic Associates, 2010 NY Slip Op 9425, and upon the claimant's reasonable decision not to attempt the unit clerk job offered by the employer. *** The carrier's additional argument that the claimant's job search is insufficient and proof of a voluntary removal also does not rebut the presumption set forth in Zamora. Therefore, the claimant is still entitled to benefits per her classification."
Awards were continued at the marked partial degree of disability rate and the case was marked no further action.
Light duty job offer
"[T]he question of whether a claimant's failure to accept a light-duty assignment constitutes a voluntary withdrawal from the labor market is a factual issue for the Board to resolve and, if supported by substantial evidence, its decision in this regard will not be disturbed (see Matter of Peluso v Fairview Fire Dist., 269 AD2d 623 ). A review of the pertinent case law reveals, however, that this rule presupposes that the employer actually offers the claimant a light-duty position that, upon review, is consistent with his or her medical limitations (see Matter of Korczyk v City of Albany, 264 AD2d 908 ; Matter of Konz v Universal Joint Sales, 262 AD2d 819 ; Matter of Willis v Auxiliary Servs. Corp., 256 AD2d 803 ; Matter of Serwetnyk v USAir, Inc., 249 AD2d 631 ; Matter of Muzio v City of Albany, 151 AD2d 883 ; see also Matter of Turner v Erie County Med. Ctr., 250 AD2d 1020 )" (Matter of Hatter v New Venture Gear, 305 AD2d 757 ).
Here, the record reflects that claimant was offered a specific, well-defined light duty unit clerk job position that required sitting at a nurse's station in the maternity ward, greeting visitors, answering telephones, performing data entry and records maintenance, operating the copy and fax machines and entailed physical demands no greater than reloading a ream of paper in the copy machine. The position offered was within the restrictions as established by her physicians (i.e., a sedentary position that involved no bending, the ability to move/no sitting for more than fifteen minutes at a time, and a ten pound weight lifting restriction) for no more than four hours per day. Furthermore, the claimant's reasons for not accepting the job – that it was the job she was performing prior to her ceasing work; that the employer representatives told her she would be expected to work a full clerk load and; that the job was too physically demanding for her – are undermined by the fact that her supervisor credibly testified that the employer was willing to fully accommodate the claimant's limitations, and that same was communicated to the claimant. Thus, the preponderance of the evidence in the record supports a finding that the claimant unreasonably declined the employer's light duty job offer and voluntarily withdrew from the labor market.
Reattachment to the labor market
A claimant who unreasonably declines a light-duty job offer within his restrictions will have to reattach to the labor market before receiving further lost wage benefits (Peluso v Fairview Fire Dist., 269 AD2d 623 ).
When attempting to show a reattachment to the labor market, a claimant "must demonstrate that he had attempted to obtain employment that took into account the restrictions caused by his disability," and has the burden of "demonstrat[ing] that his earning capacity and his ability to find comparable employment had been adversely affected by his disability" (Matter of Smith v Consolidated Edison Co. of N.Y., Inc., 68 A.D.3d 1299 ). In Smith, the court affirmed the Board's finding that claimant had not shown a reattachment to the labor market, noting that "claimant admits that he has not informed any of these prospective employers that he is disabled or that his ability to work is in any way impaired by his disability." [Id.]. In Matter of Harchar v Sarkisian Bros., Inc. (53 AD3d 986 ), claimant was laid-off and subsequently attempted to show that his partial disability played a role in his subsequent wage loss. The Third Department, affirming the Board, found that claimant had failed to meet his burden of showing a connection between his disability and his wage loss, noting that "[a]lthough claimant testified in general terms concerning his attempts to find more lucrative work through his union, there was insufficient proof that he had discussed his disability with prospective employers or that he was denied employment due to his disability" (id.).
Here, the claimant testified that she conducted an independent job search to find work within her restrictions and offered documentary evidence in the form of a list of thirteen entities that she cold-called over the course of six days (August 25, 2010, August 27, 2010, September 3, 2010, September 9, 2010, September 17, 2010 and September 22, 2010), based on their proximity to her home, to inquire whether they were hiring. She testified that none were hiring. She did not indicate what type of job she was seeking and did not submit any written applications for any existing job openings, let alone ones that were within her restrictions. The claimant stated that she continues to look for work, and is registered with the CSS (Chemung, Schuyler, and Steuben County) Workforce New York to do job searches through the Department of Labor, but failed to elaborate upon any searches she has done, or produce documentary evidence verifying her participation.
In sum, based upon a review of the record and a preponderance of the evidence, the Full Board finds that claimant's current wage loss is not caused by her permanent partial disability; rather, her wage loss is the result of her decision to decline a light duty job offer made in good faith by her employer and her failure to make a good-faith effort to seek work within her restrictions.
Accordingly, the WCLJ decision filed on January 26, 2011, is REVERSED and the claimant is found to have voluntarily removed herself from the labor market and thus is not entitled to benefits until she demonstrates reattachment to the labor market. No further action is planned at this time.