The Full Board, at its meeting held on October 16, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on January 10, 2012.
The issues presented for Mandatory Full Board Review are:
The Workers' Compensation Law Judge (WCLJ) found the claimant to suffer from a permanent partial disability with 50% medical impairment and 66.33% loss of earning capacity. The WCLJ also found that the claimant demonstrated attachment to the labor market, and amended the claim to include consequential erectile dysfunction and aggravation of depression. The WCLJ awarded the claimant wage benefits from July 2, 2002, to January 1, 2009, and directed the carrier to continue payments at the rate of $100.00 per week.
The Board Panel majority affirmed the WCLJ's finding of attachment to the labor market, modified the decision to find that the claimant suffers from a 50% loss of wage earning capacity, and rescinded the amendment of the claim to include consequential erectile dysfunction and depression.
The dissenting Board Panel member found that the claim should be amended to include consequential depression because the claimant's doctors were more credible than the carrier's consultants.
In the carrier's application for Mandatory Full Board Review, it argues that the Board Panel erred in finding the claimant attached to the labor market. The carrier asserts that the claimant voluntarily left work in April 2009 and has not sought work since that time. The carrier noted that the claimant has a history of frequently changing jobs for reasons unrelated to his disability.
In the claimant's application for Mandatory Full Board Review, he argues that the dissenting Board Panel member properly found that the claim should be amended to include consequential erectile dysfunction and depression.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This claim is established for a low back injury arising out of an accident on August 9, 1999, while claimant was working as a warehouseman. By a decision filed June 16, 2003, the Board Panel rescinded awards as of July 7, 2002, and continued the case for development of the record on, among other things, the issue of causally related reduced earnings.
The carrier raised the issue of labor market attachment, and the claimant sought to amend the claim to include consequential erectile dysfunction and depression.
Attachment to Labor Market
The claimant testified regarding his job search efforts at hearings on March 28, 2006, and December 2, 2009, and by deposition on June 30, 2009. At the March 26, 2006, hearing, the claimant stated that he had been working as an insurance salesman from August 2005 to early March 2006, but had left the job because it was commission-based and he was not earning enough to justify his expenses. Prior to that job, the claimant states that he worked for Eagle Construction selling siding from July 6, 2002, to August 30, 2004. In that job, the claimant would work only during the warm months. He quit that job because he felt it held no advancement opportunities and he wanted to go back to school.
At the June 30, 2009, deposition, the claimant could not recall many of the details of his employment history. He testified that he worked for a tax preparation company from December 2005 to March 2006, four to five days a week, and earned a total of $198.00. The parties agreed to reschedule the claimant's testimony in order to allow him the opportunity to refresh his memory by reviewing his employment records.
The claimant testified on December 2, 2009, that he worked selling insurance from February 2005 to March 2006, but the job did not suit him and he wanted to focus on health insurance. He then worked as a tax preparer from October 2006 to March 2007. Thereafter, he worked for a different company selling insurance until November 2007. The claimant stated that he left that employment because the company was corrupt and had stolen money from him. The claimant then worked for a company selling health insurance from December 2007 to April 2009. He left that employment because changes in the industry caused him to earn less money and he felt it was a dead end job. The claimant then learned that the Rural Ambulance Service was hiring and he went to the local community college to take an EMT course from May 2009 to August 2009. When he completed the coursework, however, the company was no longer hiring. He testified that he was volunteering with an ambulance company and needed a year of experience prior to being hired for pay. The claimant also noted that he had taken the civil service exam for the Sheriff's Office.
The claimant did not submit documentary evidence of his job search at the time of his testimony. However, on April 9, 2012, the claimant filed some job search records. The records included a January 11, 2010, letter advising the claimant of his score on the Sheriff's Deputy civil service exam, and a January 28, 2010, letter from Monroe Ambulance Transportation acknowledging the claimant's application. The documents also include an August 14, 2011, application to retake the Sheriff's Deputy civil service test. The application noted that the claimant had been working as a carpenter, framing and finishing gazebos, since June 20, 2011. A mileage record was also submitted.
The claimant was treated at Rochester General Hospital on an inpatient basis in 1995 for depression and paranoia, as well as substance abuse. The records indicate that the claimant's symptoms were in remission as of September 13, 1996, with some periodic depression.
On November 30, 1998, the claimant was treated at Park Ridge Health following an arrest for driving while intoxicated. The medical records note that the claimant had memory and sleep problems and he stated that life was not worth living.
The claimant was examined by Dr. Devlin on July 20, 1999. Dr. Devlin diagnosed the claimant as suffering from back pain and erectile dysfunction, and noted that the claimant displayed "some component of depression." Dr. Devlin noted that the claimant continued to complain of erectile dysfunction at an August 9, 2009, examination.
Dr. Tonetti, a urologist, examined the claimant on August 30, 1999. Dr. Tonetti found that the claimant suffered from a left variocele and two small right epidymal cysts. Dr. Tonetti advised the claimant that, despite the physical findings, the claimant's erectile dysfunction was due to psychological factors and stress.
The claimant was examined by Dr. Dunn on November 30, 1999. In a letter to Dr. Tonetti, Dr. Dunn noted that the claimant had suffered from erectile dysfunction for "the last few years."
The claimant was examined by pain management specialist Dr. Dobson on September 28, 2001. Dr. Dobson diagnosed the claimant as suffering from continued segmental instability and discogenic back pain at the L5-S1 level. In a report based on a November 16, 2011, examination, Dr. Dobson noted that the claimant's erectile dysfunction was worsening. He opined that it could be related to the claimant's work injury, but referred the claimant to a urologist, and also advised the claimant to consider seeing a psychologist.
At a January 2, 2002, examination, Dr. Dobson noted that the claimant had been examined by urologist, Dr. Davis. The claimant advised Dr. Dobson that Dr. Davis believed the claimant's erectile dysfunction was due to the depression and stress resulting from the claimant's work injury. Dr. Davis' examination records are not included in the case folder.
The claimant was examined by the carrier's consultant, Dr. Dressner on February 6, 2002. Dr. Dressner opined that the claimant's erectile dysfunction was not causally related to his August 9, 1999, work injury because the claimant experienced symptoms prior to the work injury. Dr. Dressner stated that the question of whether the claimant's depression was causally related to his work injury would best be addressed by an independent psychiatric examination, but noted that the claimant had pre-existing psychological problems.
The carrier's consultant, psychologist Dr. Letourneu, testified by deposition on February 15, 2006, that he examined the claimant on July 14, 2004. He diagnosed the claimant as suffering from mild depression not causally related to his work accident. He noted that the claimant had a six year history of mental problems, and the claimant's physician referred him to a psychologist two weeks before the work accident. Dr. Letourneu opined that the claimant's depression did not worsen after the accident.
In an amended reserved decision filed May 13, 2010, the WCLJ classified the claimant as being permanently partially disabled, with a 50% medical impairment with 66.33% loss of wage earning capacity. The WCLJ also found that the claimant remained attached to the labor market and amended the claim to include consequential erectile dysfunction and aggravation of depression. The WCLJ awarded wage benefits at varying amounts from July 2, 2002, to April 28, 2010, and directed the carrier to continue payments at the rate of $100.00 per week.
Subsequent to the January 10, 2012, Board Panel decision, the WCLJ, in decisions filed February 4, 2012, and June 11, 2012, made awards from April 28, 2010, to June 7, 2010, at a tentative rate of $100.00 per week. The carrier did not seek review of those decisions.
Attachment to the Labor Market
When there has been a finding that a claimant voluntarily retired or stopped working, the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions (Matter of Hare v Champion Intl., 50 AD3d 1254 , lv dismissed 11 NY3d 863 ; Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 ). 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 ).
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 Adult Career and Continuing Education Services – Vocational Rehabilitation (ACCES-VR) f/k/a 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).
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 ). As the Court of Appeals held in Zamora, 19 NY3d 186 (2012), "[b]y finding alternative work consistent with his or her physical limitations, or at least showing reasonable efforts at finding such work, the claimant can prove to the Board that the cause of his or her reduced income is a disability, rather than unwillingness to work again" (id.).
In the present case, the claimant testified that he was intermittently employed during the period from July 6, 2002, through April 2009. He then went to school and acquired his certification to work as an EMT in October 2009. At the time of the December 2, 2009, hearing, he was volunteering in order to gain experience to get a job in that field. However, the claimant did not submit any documentary evidence regarding his job search activities and the records submitted in 2012 indicate that, while he took the civil service examination for a Sheriff's Deputy position in 2010, he did not engage in other job search activities. Therefore, the evidence supports a finding that the claimant voluntarily removed himself from the labor market as of the December 9, 2009, hearing. The claimant's wage benefits should be suspended as of that date and he should be directed to submit documentary evidence of his volunteer work and other job search activities after that date in order to be entitled to further benefits.
Amendment of the Claim to Include Erectile Dysfunction and Depression
"[A] claimant bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence" (Matter of Williams v Colgate Univ., 54 AD3d 1121  [citations omitted]). The medical opinion need not be expressed with absolute or reasonable certainty (Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890 ). It must, however, be an indication of sufficient probability as to the cause of the injury, and the medical opinion must be supported by a rational basis (id.). "[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920  [citations and internal quotation marks omitted]).
In the present case, Dr. Devlin diagnosed the claimant as suffering from erectile dysfunction in July 1999, and Dr. Tonetti noted that the claimant had been experiencing symptoms for several years prior to 1999. The medical records do not indicate that the claimant's condition worsened after the accident. Therefore, the evidence supports the Board Panel's finding that the claimant's erectile dysfunction was not related to his work accident.
Likewise, the claimant suffered from severe depression for several years preceding his work accident. While the claimant's physician found that his psychological conditions were in remission in 1996, the medical records indicate that the claimant sought treatment for depression in 1998, and Dr. Devlin noted symptoms of depression at his July 1999 examination of the claimant. The record therefore supports the Board Panel's determination that the claimant's depression was not consequential to his work accident.
Therefore, the preponderance of the evidence in the record supports a finding that the claimant failed to demonstrate attachment to the labor market as of December 2, 2009, and the Board Panel properly disallowed his claim for consequential erectile dysfunction and depression.
ACCORDINGLY, the WCLJ amended reserved decision filed on May 13, 2010, is MODIFIED to reflect that the claimant has a 50% loss of wage earning capacity pursuant to Workers' Compensation Law § 15(5-a). The amended reserved decision is further modified to disallow the claims for an aggravation of underlying depression and consequential erectile dysfunction and to find that the claimant voluntarily removed himself from the labor market as of December 9, 2009, and to rescind awards after that date. No further action is planned by the Board at this time.