Case # G0033039
Date of Accident: 10/31/2008
District Office: Buffalo
Employer: EGW Temporaries
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 63183909-081
Date of Filing of Decision: 10/10/2012
Claimant's Attorney: Jack G. Stiefel, Esq.
Panel: Robert E. Beloten

The Full Board, at its meeting held on September 11, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on November 25, 2011.

ISSUE

The issue presented for Mandatory Full Board Review is whether the carrier has provided sufficient evidence to support its request to reopen the case.

On April 5, 2011, the carrier submitted a Form RFA-2 (Carrier's/Employer's Request for Further Action), and requested authorization to suspend ongoing payments to the claimant.

In a Memorandum of Decision filed November 25, 2011, the Board Panel majority denied the carrier's application to reopen the case, concluding that the carrier's supporting evidence was insufficient to warrant reopening the case.

The dissenting Board Panel member would have granted the carrier's request for reopening.

The carrier filed an application for Mandatory Full Board Review filed on December 20, 2011.

The claimant filed a rebuttal on January 13, 2012.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This claim is established for a low back injury that resulted from an accident on October 31, 2008, while the claimant was working as a laborer.

In a decision filed on October 27, 2010, the WCLJ classified the claimant with a permanent partial disability; found that the claimant has an impairment of 75% which, along with other factors, demonstrates a 75% loss of wage earning capacity; directed the carrier to continue awards at the rate of $165.00 per week; and marked the case "no further action."

On February 1, 2011, the Board received a copy of a letter from the carrier to the claimant's attorney, in which the carrier requested documentation of the claimant's work search efforts.

On April 5, 2011, the carrier submitted an RFA-2 to request a hearing on the issue of whether the claimant has conducted a valid work search. The carrier argued that the claimant's work search was not sufficient because he applied to businesses that were not hiring. Attached to the carrier's RFA-2 is a letter from the claimant to the carrier and a job search documentation sheet, which lists 14 employers where the claimant applied for work during the period from February 16, 2011, to April 1, 2011. The documentation indicates that 9 of the 14 employers were not hiring.

LEGAL ANALYSIS

In its application for Mandatory Full Board Review filed on December 20, 2011, the carrier argues that the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions. The carrier argues that whether the claimant's search for work is sufficient evidence of his attachment to the labor market is a question of fact that warrants reopening.

In a rebuttal filed with the Board on January 13, 2012, the claimant argues that the carrier's request for reopening was properly denied because the carrier has offered insufficient evidence to warrant reopening of the claim.

The issue of whether a claimant has voluntarily withdrawn from the labor market is a question of fact for the Board to resolve and, if supported by substantial evidence in the record, the Board's resolution of that issue should not be disturbed (Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 [2012]).

Here, no finding of involuntary removal from the labor market has been made in this case. Nevertheless, the claimant has been classified with a permanent partial disability, the claimant was found to have a 75% loss of wage earning capacity, and the carrier was previously directed to continue awards at the rate of $165.00 per week. It is readily apparent that the claimant is unable to return to his job as a laborer with the employer due to his compensable injuries. Thus, the Full Board finds that the claimant's work stoppage was involuntary.

Where, as here, the claimant has a permanent partial disability and has been found to have involuntarily withdrawn from the labor market, either by retiring or stopping work due to his/her causally related disability, the Board may, but is not required to, infer that any subsequent loss of wages is attributable to the disability (Zamora, 19 NY3d 186 [2012]). The claimant has the burden of establishing by substantial evidence, that he "made a reasonable search for work consistent with [his] physical restrictions" (id.). 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 [2007]). 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 [2005]).

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).

At a minimum, if the independent job search is in person, documentary evidence should provide the day, month, and year of the contact; the name and address of the employer; the name and telephone number of the person with whom employment was discussed; the type of job sought; and the response of the potential employer. If the contact was written, copies of the resume submitted if any; the inquiry letter or e-mail communication; or the application completed is necessary along with the day, month, and year submitted, the nature of employment sought, name and address of the employer and the response of the potential employer (id.).

The Board has the authority "to modify or rescind awards" (Workers' Compensation Law [WCL] § 142) and, subject to certain limitations, it "may, from time to time, make such modification or change with respect to former findings, awards, decisions or orders relating thereto, as in its opinion may be just…" (WCL § 123).

With respect to claims in general, 12 NYCRR 300.14 allows for the "rehearing or reopening of a claim" based upon an application which makes one of three contentions: that certain material evidence was not available at the time of the hearing, there has been a change in claimant's condition material to the issue involved, or it is in the interest of justice.

On the other hand, 12 NYCRR 300.23(c)(1) specifically pertains to cases, like the instant one, which have been closed upon a finding of a permanent partial disability and the carrier is seeking a suspension of benefits. As to such post-classification reopening, the regulation provides in part:

"[i]n any case where the board has made an award for compensation for a… permanent partial disability, payments shall not be suspended or modified until an application on a prescribed form accompanied by supporting evidence, is made to reconsider the degree of impairment or wage-earning capacity together with proof of mailing of copies thereof upon the claimant, his doctor and his representative and the board has made a final determination of such application, finding that such suspension or modification is justified…" (12 NYCRR 300.23[c][1]).

The carrier's RFA-2 was based upon the assertion that part of the claimant's work search consisted of contacting 14 employers about employment. She filled out a contact sheet, and under 'outcome' the majority of employers had indicated they had no work at the present time. That offer of proof, in and of itself, would not be sufficient to demonstrate a lack of attachment per American Axle. If, on the other hand, the carrier had presented evidence with respect to an employer's offer of light duty work within the claimant's medical restrictions, or an offer of retraining or job search assistance, the failure to respond to such offers, or an unexplained rejection of such offers, would raise an issue of fact that something other than the claimant's disability may be the reason for the continued loss of wages. Likewise, evidence of claimant's retirement, leaving a light duty job, or a change in the claimant's condition would also raise a triable issue of fact sufficient to reopen the case.

Therefore, the Full Board finds that the carrier's request for reopening of the record for further development on the issue of labor market attachment should be denied.

CONCLUSION

ACCORDINGLY, based upon a review of the evidence submitted with the RFA-2 and a preponderance of the evidence in the record, the carrier's application to reopen is DENIED. No further action is planned at this time.