The Full Board, at its meeting on February 26, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on April 27, 2012.
The issues presented for Mandatory Full Board Review are:
The Workers' Compensation Law Judge (WCLJ) classified the claimant with a permanent partial disability; found that the claimant had a 75% permanent impairment; and that the claimant remained attached to the labor market based upon his participation in VESID, One-Stop and adequate job search.
The Board Panel majority affirmed the WCLJ's decision.
The dissenting Board Panel member would find that the claimant has voluntarily withdrawn from the labor market due to inadequate efforts to search for work within his restrictions. The dissenting panelist did not comment upon the findings with respect to degree of disability in her opinion.
On May 25, 2012, the group self-insured trust (GSIT) filed an application for Mandatory Full Board Review, arguing that given the May 1, 2012, Court of Appeals decision in Matter of Zamora v New York Neurologic Assoc, the Board Panel majority's decision concerning a required inference that the claimant's reduced future earnings resulted from his disability, is erroneous. The GSIT argues further that substantial and credible evidence in the case support a finding of moderate disability.
On June 13, 2012, the claimant filed a rebuttal, asserting that there is substantial evidence supporting the Board Panel majority's decision that the claimant's disability was the sole cause of his reduced earning capacity; that the claimant was permanently partially disabled to a marked degree and that the claimant maintained his attachment to the labor market.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On June 15, 2006, the claimant, then a 38 year-old municipal worker, sustained a work-related injury while twisting a water shutoff gate valve. The case is established for injuries to the claimant's low back. The claimant's average weekly wage is $428.94.
At a hearing held on May 30, 2008, the claimant testified that he had been put on light duty after his work-related accident. His condition began to worsen in November 2007. He began experiencing sharp stabbing pain which he described as a pinched nerve. Dr. Foxton, the claimant's attending pain management physician, took him out of work on November 26, 2007, and he has not worked since.
On November 23, 2010, the GSIT filed a form RFA-2, requesting a hearing regarding the claimant's job search efforts.
At a hearing held on February 8, 2011, the claimant testified that he filed written job search lists with the Board (see CIS Document I.D. Nos. #173631708 and #178100737), listing the names and addresses of potential employers he contacted, including the names of the contact persons, their phone number, the jobs applied for and the responses. He notified all the prospective employers of his work restrictions based upon his functional capacity evaluation of October 6, 2010. These restrictions include a lifting/carrying limit of 10 to 15 pounds and the ability to readjust his position from sitting to standing and positional changes. He provided the prospective employers a written sheet from Dr. Herbowy setting forth the limitations. The job applications were all made in person. He applied for a variety of jobs. He does have difficulties with his job search and accessing medical treatments because he has limited access to transportation. He has not had any positive responses to his job applications. He also registered with the One Stop Career Center at the Herkimer office of Working Solutions on January 13, 2011. He met with a counselor and went through orientation and various classes and learned how to use its computers to access VESID, to conduct a job search and to prepare a resume. He enrolled in VESID in Utica and also reapplied in Herkimer and was assigned a counselor. He hasn't applied for any additional jobs after registering with the One Stop Career Center. He doesn't have a home computer. He does receive a newspaper and checks the classifieds. He has not recently mailed out any resumes or applied to any jobs from the classifieds. He hasn't registered for any of the additional sessions that were recommended by VESID. He currently treats with Dr. Foxton. Dr. Foxton ordered the functional capacity evaluation. The work restrictions recommended by Dr. Foxton included no lifting of more than 10 to 15 pounds, no prolonged walking up an elevated surface or ladder, no prolonged sitting or standing without adjusting his position and limited bending.
The job search list (CIS document #173631708) filed on November 13, 2010, lists 12 jobs applied to for the period from November 12, 2010, to November 17, 2010. The job search list (CIS document #175597518) filed on January 18, 2011, lists 9 jobs applied to for the period from December 29, 2010, to January 13, 2011, and includes a letter from NYS Department of Labor, Herkimer Working Solutions, dated January 13, 2011, listing the dates of various programs and services the claimant participated in on January 13, 2011. The claimant also filed the written job applications for the positions for which he applied that were listed in the job search lists. The applications note that besides working a street superintendent for the employer of record, the claimant's job history includes custodian and groundskeeper. The applications further note that the claimant has a tenth grade education and obtained a GED.
In an IME report of July 26, 2010, the GSIT's consulting orthopedic surgeon, Dr. Sadrieh, diagnosed the claimant with a lumbosacral sprain with the underlying condition of degenerative disc disease of the lumbar spine at multiple levels and secondary spinal stenosis. The doctor opined that the claimant had an overall moderate degree of disability with a guarded prognosis due to the chronic nature of his condition and is at maximum medical improvement.
Dr. Sadrieh testified on February 1, 2011, that he examined the claimant on two occasions, July 22, 2010, and November 12, 2009. Dr. Sadrieh corrected a misstatement in his July 22, 2010, report, to wit, he indicated incorrectly in his report that the claimant could return to light duty work with a 50 pound weight lifting limit; the report should have indicated a 20 pound weight lifting limit. An MRI report showed disc bulging at multiple levels with varying degrees of moderate spinal stenosis and no frank disc herniation. The claimant's complaints of chronic back pain were consistent with his MRI studies showing degenerative changes in the lumbar spine. The claimant's examination was fairly normal with mild restriction of active flexion. The doctor opined that the claimant was at maximum medical improvement and had a permanent partial disability to a moderate degree. The doctor opined that surgery was not recommended. The doctor opined that the claimant should be weaned off the Fentanyl patch and should be treated with over-the-counter analgesics. He also recommended home exercises and a periodic follow-up with his physician. A discogram was positive for at least three levels, with the worst level at L5, S1 and consists of degenerative disc disease, also at L3 and L4. The doctor opined that the claimant does not have a disc herniation but has a disc bulge. The doctor conceded that the claimant had a poor response to chronic pain management and has failed with all conservative treatments including physical therapy both aquatic and land-based. The doctor conceded that the claimant was continuously using multiple drugs but opined that the claimant's pain could be managed with fewer narcotics and he did not need all the narcotic medications he was presently using. He did find the claimant was walking with an antalgic limp. In a functional capacity evaluation dated October 6, 2010, the claimant's consulting occupational therapist, Ms. Christeler, recommended the following work limitations: limit lifting to 10-15 pounds, depending upon frequency and type of lift; adjust work height to allow for more neutral spinal positioning; use of a chair with a back support and armrests to ease spinal loading when sitting; leaning on a support surfaces when standing for 20 to 30 minutes to ease spinal loading; a sit/stand work station to allow for regular positional changes; use of support surfaces to get in or out of low level positions; and participation in low impact cardiovascular activities like brisk walking for 20 to 30 minutes at least three to four times per week for overall health and well-being.
Ms. Christeler testified on January 25, 2011, that she is specially trained to perform "Work Well" functional capacity evaluations. The evaluation involves a history interview, a written test, a physical examination including strength and range of motion testing, with heart and pulse rate checks, a variety of lifts, observations of the claimant sitting, stair climbing, walking and use of his fine motor abilities. She spent three hours with the claimant. The claimant was cooperative and consistent in his performance leading her to conclude her results were valid. Her conclusion was that the claimant had the physical ability to meet the physical demands of sedentary work as described by the US Department of Labor, provided that the seating and work station was a sit/stand work station that would allow for regular positional changes to minimize the discomfort associated with static positioning and was limited to 10 to 15 pounds of lifting depending on the type and frequency of the lifting. This conclusion was based upon the US Department of Labor standards. The witness opined that the claimant would be able to work a 40 hour week provided he had a chair with back support and arm rests because these would help him unload the spine and give him relief. He would also need to be able to change his position to stand from time to time as need.
The claimant's treating pain management specialist, Dr. Foxton, testified on February 15, 2011, that he first began treating the claimant on July 13, 2007. The claimant presented with complaints of sharp lower back pain as a result of a work injury on June 15, 2006. An MRI of January 8, 2008, revealed disc desiccation at L5, S1 with disc bulging at multiple levels, eccentric disc bulging on the right side of L5, S1, narrowing of the neuroforamen due to degenerative changes in the facet joint; possible impingement of the exiting nerve root; and moderate spinal stenosis. He received a copy of the October 6, 2010, functional capacity evaluation. His nurse practitioner reported on January 18, 2011, that the claimant found prolonged sitting and standing bothersome. The claimant has been taking Fentanyl, Hydrocodone, Lyrica and Skelaxin, all narcotic pain medications, for the last year. The most recent diagnosis is displaced disc, lumbar stenosis and degenerative disc disease. He has been using multiple pain management modalities for the claimant, including physical therapy, intervention treatments and medical management as well as chiropractic care. Using the functional capacity examination as a basis, including the recommendation of a sedentary job and difficulty with prolonged sitting and standing, difficulty with sexual function, difficulty dressing, difficulty sleeping more than five hours per night, the doctor opined that the claimant was 100% disabled from his previous employment and was disabled to a maximum of a marked partial degree of disability and that the claimant's disability ranges from a moderate to a marked partial degree.
The WCLJ reserved decision filed on March 30, 2011, classified the claimant as permanently partially disabled with 75% permanent impairment; made awards from December 28, 2010, to March 25, 2011, and continuing at a $214.47 per week rate; found that the claimant was attached to the labor market and is participating in VESID and a Labor Department One-Stop Center; and continued the case.
Labor Market Attachment
In Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 (2012), the Court of Appeals held 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" (id.). For a non-scheduled permanently partially disabled claimant, "a central question for the Board to resolve, before awarding wage replacement benefits … is 'whether a claimant has maintained a sufficient attachment to the labor market' (Burns v Varriale, 9 NY3d 207 ; see Matter of Jordan v Decorative Co., 230 NY 522 )" (Zamora, 19 NY3d 186 ). This initial showing is claimant's burden. "'Claimant must demonstrate that his or her reduced earning capacity is due to the disability, not … factors unrelated to the disability' (Burns, 9 NY3d at 216)" (Zamora, 19 NY3d 186 ).
Thus, in the present case, whether claimant stopped working due to his permanent partial disability is not dispositive, and the Board may find that claimant's wage loss is due to reasons other than his disability even though he may have stopped working due to his work-related disability.
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).
Here, it is undisputed that on October 4, 2010, the claimant participated in a functional capacity evaluation, the results of which provided that the claimant could return to work in a sedentary capacity. The claimant testified that he had registered with One-Stop, and had provided proof of same in the form of a letter from NYS Department of Labor, Herkimer Working Solutions, dated January 13, 2011, listing the dates of various programs and services the claimant participated in on January 13, 2011. In addition, the clamant has demonstrated that he sought work within his restrictions through an independent job search as indicated in his testimony and the documentary evidence in the form of the job search lists and the employment applications wherein from November 2010 to January 2011, the claimant had applied to 21 jobs for which he provided the name, address and contact information of the prospective employer. The positions for which the claimant applied included, among others, sales associate and counter help. In addition, the claimant testified that he had provided the prospective employers with a copy of a written sheet from Dr. Herbowy setting forth his limitations. The GSIT's assertion that not one single job applied for was within the claimants' known and stated restriction is not established by the evidence.
Accordingly, the Full Board finds, based upon a preponderance of the evidence in the record, that the claimant has remained attached to the labor market.
Degree of Disability
In evaluating the medical evidence presented, the Board is not bound to accept the testimony or reports of any one expert, either in whole or in part, but is free to choose those it credits and reject those it does not credit (see Matter of Morrell v Onondaga County, 238 AD2d 805 , lv denied 90 NY2d 808 ; Matter of Wood v Leaseway Transp. Corp., 195 AD2d 622 ). Thus, questions of credibility, reasonableness, and relative weight to be accorded to conflicting evidence are questions of fact that come within the exclusive province of the Board (see Matter of Berkley v Irving Trust Co., 15 AD3d 750 ).
The claimant's treating pain management specialist, Dr. Foxton, opined that the claimant was 100% disabled from his previous employment and was disabled to a maximum of a marked partial degree of disability and ranges from a moderate to a marked partial degree of disability. The record reflects that the claimant meets most of the criteria of a marked degree of disability, as provided for in the Board's Medical Guidelines (1996), including chronic pain with the use of multiple drugs, long history of failed responses to conservative treatment, significant gait deviation, difficulty negotiating stairs and irregular terrain, positive diagnostic tests. The GSIT's consulting orthopedic surgeon, Dr. Sadrieh, opined that the claimant had a moderate permanent partial disability but conceded that the claimant had complaints of chronic back pain which were consistent with his MRI studies, surgery was not recommended, the claimant took multiple medications in the form of multiple narcotic analgesics, had significant gait deviation, and had a poor response to chronic pain management and has failed with all conservative treatment including physical therapy, aquatic and land-based.
Therefore, the Full Board finds, based upon a preponderance of the evidence, that the claimant is permanently partially disabled to a marked degree.
Accordingly, the WCLJ decision filed on March 30, 2011, is AFFIRMED. No further action is planned by the Board at this time.