The Full Board, at its meeting on September 11, 2012, considered the above-captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision (MOD) filed November 29, 2011.
The issue presented for Mandatory Full Board Review is whether the claimant has demonstrated an attachment to the labor market through evidence of a search for work within his restrictions.
In a decision filed on August 10, 2010, and amended on August 11, 2010, the Workers' Compensation Law Judge (WCLJ) determined that the claimant did not voluntarily withdraw from the labor market.
The Board Panel majority affirmed the WCLJ's decision, finding that the claimant had produced sufficient evidence of a good faith effort to remain attached to the labor market. The Board Panel majority concluded that the claimant's testimony and search diary were sufficient to substantially satisfy the requirements of Matter of American Axle (2010 NY Wrk Comp 80303659).
The dissenting Board Panel member determined that the claimant's handwritten job search diary was insufficient to meet the minimum standards set forth in American Axle, noting that the claimant applied to employers that were not hiring and did not submit any applications to them. The dissent also noted that the claimant failed to demonstrate utilization of a job location service and the record was devoid of any evidence of job retraining or full time enrollment in an accredited educational institution.
In its application for Mandatory Full Board Review, the carrier asserts that the claimant's evidence of a search for employment was insufficient under American Axle, that the claimant has not remained attached to the labor market since the issue was raised in March 2010, and that the claimant is not entitled to benefits as of the carrier's March 17, 2010, RFA-2 form.
In rebuttal, the claimant argues that he conducted an independent, diligent, and persistent search for work within his medical restrictions.
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 and left knee that occurred on July 7, 1997. The claimant was classified with a permanent partial disability (PPD) in 2000.
The carrier filed an RFA-2 (Carrier's Request for Further Action) form with the Board on March 17, 2010, wherein it requested a hearing on the issue of attachment to the labor market.
At a hearing held on August 5, 2010, the claimant testified that since July 2010, he had sought work at approximately fourteen locations for a variety of positions including cabinet maker, upholsterer, laborer, and driver. He explained that the employers were not hiring or accepting applications. The claimant provided a list of the businesses at which he sought work. The handwritten list provided by the claimant contains the names, addresses, and phone numbers of twelve businesses in the Long Island City, New York area.
Upon cross-examination, the claimant testified that he does not possess a commercial driver's license. He explained that he had sought work door-to-door and over the phone, but that none of the businesses on the list provided were accepting applications. The claimant stated that he does not have a resume and had not visited an employment agency. The claimant explained that he had sought work prior to July 2010, but that he did not document his prior job search.
At the conclusion of the hearing, the WCLJ found that the claimant did not voluntarily withdraw from the labor market. The resulting decision was filed on August 10, 2010, and amended on August 11, 2010.
It is well settled that partially disabled claimants have "an obligation to demonstrate an attachment to the labor market by evidence of a search for employment within medical restrictions" (Matter of Droge v Costco Price Club, 78 AD3d 1473 ; see also Matter of Hester v Homemakers Upstate Group, 82 AD3d 1461 ; Matter of Bobbitt v Peter Charbonneau Constr., 85 AD3d 1351 ).
Attachment to the labor market can be demonstrated by credible documentary evidence showing that the claimant is actively seeking work within his or her medical 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 his or her work restrictions (American Axle, 2010 NY Wrk Comp 80303659).
Here, the claimant produced a job search log detailing door-to-door job search for approximately one month prior to the August 5, 2010, hearing. The claimant testified that he visited approximately fourteen businesses and was advised that they were not hiring or accepting applications. Claimant submitted a handwritten list containing the names, addresses, and phone numbers of twelve businesses at which he sought employment. Additionally, the claimant testified that he sought employment in newspaper classified advertisements. The claimant further testified that although he did not document it, he had searched for work prior to July 2010. The WCLJ who heard claimant's testimony regarding his work search efforts found him to be credible. Although the Board is entitled to make its own factual findings and is not bound by the credibility determinations of a WCLJ (see Matter of Ortiz v Five Points Correctional Facility, 307 AD2d 634 ), the credibility determinations of the WCLJ who heard the testimony are entitled to considerable weight (Matter of Di Donato v Hartnett, 176 AD2d 1102 ).
The Full Board finds, upon review of the evidence of record, that the claimant has provided sufficient evidence of a sufficiently "timely, diligent, and persistent" independent job search to satisfy the requirements for an independent job search within his medical restrictions, pursuant to American Axle, and has therefore remained attached to the labor market.
Accordingly, the WCLJ decision filed on August 10, 2011, and amended on August 11, 2010, is AFFIRMED. No further action is planned by the Board at this time.