The Full Board, at its meeting held on February 26, 2013, considered the above-captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on January 19, 2012.
The issue presented for administrative review is whether the carrier presented sufficient evidence to warrant reopening the claim on the issue of voluntary removal from the labor market.
The Board Panel majority denied the carrier's request to reopen the case on the issue of voluntary removal from the labor market.
The dissenting Board Panel member found that the carrier's evidence raised a question of fact regarding whether the claimant cooperated in good faith with the carrier's vocational consultant, and would grant the carrier's request to reopen the case for further development on the issue of voluntary removal from the labor market.
In the carrier's application for Mandatory Full Board Review, it argues that the Board Panel majority erred in denying its application to reopen the case on the issue of whether the claimant voluntarily removed himself from the labor market.
In rebuttal, the claimant argues that pursuant to the Appellate Division decision in Zamora v New York Neurologic Associates, 79 AD3d 1471 (2010), the carrier bears the burden of showing that the claimant is unattached to the labor market for reasons solely unrelated to his disability. The claimant asserts that the carrier has failed to meet its burden and therefore the Board Panel majority properly declined to reopen the case.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, a truck driver, has an established claim for a low back injury arising out of a work accident on May 30, 2006. In a decision filed June 14, 2011, the Workers' Compensation Law Judge (WCLJ) classified the claimant with a moderate to marked permanent partial disability. In a Memorandum of Decision filed October 17, 2011, the case was marked for no further action.
The carrier filed a Form RFA-2 (Request for Further Action by Carrier/Employer) on October 13, 2011, seeking to suspend lost wage benefits as of September 1, 2011, because the claimant voluntarily removed himself from the labor market. In support of the carrier's request, it submitted the September 16, 2011, report of CBI Employment (CBI), a vocational assistance firm, regarding CBI's efforts to provide vocational rehabilitation services to the claimant. The report notes that the claimant's attorney granted CBI permission to contact the claimant directly to provide services. The consultant noted that the claimant advised that he had transportation issues because his vehicle was not working, would cost too much to fix and was too expensive to fuel. The consultant provided the claimant with six "Application Notices" regarding open positions within his restrictions and the claimant applied to each of these jobs, often utilizing the resume prepared for him by CBI. However, in one case, the claimant was not considered for a job in the hospitality industry because he indicated that he was unwilling to work nights or weekends. The consultant also identified a job in the railroad industry that the claimant could perform from home, but the claimant was not considered for that position because he, again, indicated that he would not work nights or weekends.
The report indicates that the claimant was not considered for one position because he did not have a high school diploma. However, when the consultant provided the claimant with information regarding online courses to complete his degree, the claimant did not follow up. The consultant noted that while the claimant registered with ACCES-VR and One-Stop Career Center, he has not utilized any of either provider's services.
When, as here, a claimant has been classified permanently partially disabled, the Board may apply a rebuttable inference that any subsequent reduction in wages is attributable to the disability (Matter of Mazziotto v Brookfield Const. Co., 40 AD2d 245 ; Matter of Coyle v Intermagnetics Corp., 267 AD2d 621 ). "While a reduced earnings award may be denied where the reduction in earning capacity results from age, economic conditions or other factors unrelated to the disability, such an award will not be disturbed absent proof that the reduction was solely due to such unrelated factors" (Coyle, 267 AD2d 621  [internal citations omitted]). The carrier may also negate the inference by proof that a claimant has voluntarily withdrawn from the labor market or has not maintained an attachment to the labor market (see Matter of German v Target Corp., 77 AD3d 1126 ).
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 ).
While the claimant argues that the carrier must show that he is unattached to the labor market for reasons solely unrelated to his disability pursuant to the Appellate Division's holding in Zamora v New York Neurologic Associates, 79 AD3d 1471 (2010), this argument is without merit. Shortly after the claimant filed his rebuttal, the Court of Appeals overturned the Appellate Division's ruling in Zamora, holding that the Board is not required to "infer, from the finding that a claimant withdrew from her employment due to an accident at her work place, that her post-accident loss of wages is attributable to physical limitations caused by the accident" (Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 ).
In the present case, the carrier presented evidence that CBI provided vocational assistance to the claimant, and that the claimant failed to cooperate in good faith with CBI. While the claimant applied to the positions to which he was referred by CBI, in at least two cases the claimant advised the potential employer that he was unwilling to work on nights or weekends. No evidence suggests that the claimant is unable to work nights or weekends due to his disability. Additionally, while claimant alleges that he is limited in his job opportunities by a lack of transportation, that limitation is unrelated to his causally related disability.
Thus, although the carrier's request for reopening does not definitively show that the claimant has voluntarily removed himself from the labor market, it does raise a question of fact regarding whether the claimant has cooperated in good faith with the carrier's vocational consultant.
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 request to reopen is GRANTED.