The Full Board, at its meeting held on April 16, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on July 16, 2012.
The issue presented for Mandatory Full Board Review is whether the carrier presented sufficient evidence to warrant reopening of the case on the issue of whether the claimant voluntarily removed himself from the labor market.
The Board Panel majority denied the carrier's request to reopen the claim.
The dissenting Board Panel member found that the carrier had submitted sufficient evidence to warrant reopening.
In the carrier's application for Mandatory Full Board Review, it argues that it presented sufficient evidence to warrant reopening the case on the issue of whether the claimant voluntarily removed himself from the labor market.
In rebuttal, the claimant argues that the Board Panel majority properly denied the carrier's request to reopen.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant has an established claim for a left hip and low back injury arising out of an accident on April 18, 2008. The claimant was found to suffer from a marked permanent partial disability in a Notice of Decision filed on July 2, 2010. The case was marked for no further action in a January 7, 2011, Proposed Decision, which became final on February 16, 2011.
The carrier filed a Form RFA-2 (Carrier's Request for Further Action) on March 22, 2012, asserting that lost wage benefits should be suspended as of March 21, 2012, due to the claimant's voluntary removal from the labor market. In support of the request, the carrier attached documentation from its vocational rehabilitation contractor, Managed Care Network (MCN). The documentation included several vocational progress reports and copies of correspondence. In an October 14, 2011, vocational status report, MCN reported that it had made numerous attempts by letter and by telephone to contact the claimant's counsel to request permission to contact the claimant directly in order to provide services. A September 26, 2011, letter to the claimant's attorney requests permission to contact the claimant directly and an October 3, 2011, letter to the attorney indicates that MCN will assume that it has permission to contact the claimant directly if the attorney does not respond. An October 11, 2011, letter to the claimant, which was copied to the claimant's attorney, requests that the claimant call MCN to schedule an appointment for vocational counseling.
A November 4, 2011, vocational status report indicates that the claimant's attorney granted permission to contact the claimant directly and that a meeting was scheduled to take place at the attorney's office. A November 30, 2011, vocational status report indicates that the vocational counselor arrived at the claimant's attorney's office on the date scheduled and was advised that the meeting would have to be rescheduled. MCN noted that its counselor had contacted the claimant's attorney four times to reschedule the meeting, and on November 30, 2011, the claimant's attorney advised MCN's representative that he usually does not allow vocational services. A November 30, 2011, letter from MCN to the claimant's attorney confirms the telephone conversation and that the claimant's attorney stated that he would contact the claimant to discuss whether he wanted to participate in vocational rehabilitation services.
A January 16, 2012, vocational progress report indicates that MCN forwarded twelve job listings to the claimant's attorney and requested that the documentation be forwarded to the claimant. The report also indicates that the claimant's attorney denied MCN permission to contact the claimant directly.
A February 20, 2012, vocational report enclosure indicates that MCN followed up with the employers listed on the documentation sent to the claimant. One employer confirmed that the claimant had applied for a position. Eight employers confirmed that the claimant had not applied, and the remaining three employers either could not be reached or indicated that they do not release that information.
The Board's determination whether or not to exercise its discretion with respect to the reopening of a case will generally not be set aside absent an abuse of discretion (see Matter of White v Herman, 56 AD3d 872 ; see also Matter of Burris v Olcott, 95 AD3d 1522 ; Matter of Cagle v Judge Motor Corp., 31 AD3d 1016 , lv dismissed 7 NY3d 922 ).
The provisions of 12 NYCRR 300.23(c)(1) apply in any case where a claimant has been classified with a permanent partial disability and the carrier is under a directive to continue payments. In order to suspend or reduce such payments in such a case, the carrier must file an RFA-2 accompanied by supporting evidence.
The claimant's attorney is the agent and representative of the claimant and has a duty to forward the information provided to him by MCN to the claimant. If the claimant's attorney failed to forward the information to the claimant, this fact can be raised by the claimant at a hearing regarding whether he cooperated with the carrier's vocational rehabilitation contractor. However, the fact that the claimant's attorney denied MCN's request for permission to contact the claimant directly does not negate MCN's efforts to provide vocational rehabilitation to the claimant. Furthermore, MCN's February 20, 2012, report states that the claimant did apply for one of the job openings provided by MCN. Therefore, the evidence indicates that the claimant did receive the job listings that were sent to his attorney.
Therefore, the preponderance of the evidence in the record supports a finding that the carrier presented sufficient evidence to warrant reopening of the case on whether the claimant has voluntarily removed himself from the labor market.
ACCORDINGLY, based upon a review of the evidence submitted with the RFA and a preponderance of the evidence in the record, the carrier's application to reopen is GRANTED. The case is reopened and returned to the calendar for further proceedings.