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Case # 30104373
Date of Accident: 07/11/2001
District Office: Peekskill
Employer: NYC Housing Authority
Carrier: NYC Housing Authority
Carrier ID No.: W843254
Carrier Case No.: 75135552
Date of Filing of Decision: 03/07/2013
Claimant's Attorney: Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano, LLP
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on January 15, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on March 7, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant's loss of earnings is causally related to his compensable disability.

The Workers' Compensation Law Judge (WCLJ) found that the claimant had reattached to the labor market in January 2006, and directed awards for the period January 1, 2006, through July 3, 2010, and continuing, at a $400.00 permanent total disability (PTD) rate.

The Board Panel majority, in a decision filed March 7, 2012, affirmed the WCLJ's decision.

The dissenting Board Panel member found that the documentary evidence submitted by the claimant (see CIS doc. # 169805494, filed August 17, 2010) failed to list the prospective employer's addresses, the names or telephone number of the person the claimant contacted, or the type of job sought. As such, the dissenting Board Panel member would find the documentary evidence lacks the necessary specificity to support a finding of reattachment, and believes the WCLJ's decision should be reversed and the case closed.

In its application for Mandatory Full Board Review, the employer contends the claimant failed to make an adequate job search within restriction, and that his testimony and the documentation submitted is not sufficient to support a finding of reattachment.

In rebuttal, the claimant argues that the Board Panel's decision should be affirmed.

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

FACTS

The claimant, a former caretaker with the NYC Housing Authority, filed a claim for compensation benefits in 2001, alleging that he developed a pulmonary disability as a result of being exposed to asbestos dust during the course of his employment. The employer controverted the claim.

The claimant testified on January 7, 2003, that he worked for the NYC Housing Authority from 1951 through 1993, when he retired at age sixty-two. He conceded that his retirement had nothing to do with his lung problems, although on occasion while still working he would feel out of breath. During his employment, he would clean incinerators, removing burnt cans and ashes, would be in the vicinity when elevators and refrigerators were sprayed with paint, and would be in the area when plumbers removed asbestos. He termed the work environment "dusty". He first noted problems with his lungs in 1994 or 1995, after his retirement. After reading about asbestos exposure in the newspaper in 2001, he went for a screening and chest x-rays revealed asbestos in his lungs. He treated with Dr. Daum. At the January 7, 2003, hearing, claimant's counsel stated that no claim was being made for lost time (see January 7, 2003, transcript, pgs. 15-16).

Following development of the record, the WCLJ, in a decision filed May 15, 2003, established the case for an occupational disease of chronic obstructive disease, classified the claimant with a permanent total disability, found the claimant to have remained attached to the labor market, and made awards from July 11, 2001, forward at $400.00 per week. The employer sought review of the decision and the Board Panel. In a decision filed December 12, 2003, modified the WCLJ's decision. While the Board upheld establishment of the claim, and the PTD classification, it found the claimant had retired in 1993 for reason unrelated to his compensable condition, and rescinded awards, without prejudice, and directed further development of the record regarding claimant's attempts to reenter the labor market following his retirement.

Thereafter, the parties attempted, unsuccessfully, to settle the case. Claimant's counsel filed an RFA-1 on November 13, 2009 (see CIS doc. # 159290903), requesting a hearing as settlement negotiations had "broken down." On July 2, 2010, the claimant testified on the issue of reattachment to the labor market. Claimant testified that he last worked in July 1993, but had attempted to start up a plumbing business in 2001 and 2002. The name of the business was "B & W Plumbing" and it was a partnership with another gentleman. The claimant's responsibilities included doing book work and ordering materials. The business was not successful and "went under" the following year. The claimant conceded that he had not looked for work from 2002 through 2006. However, commencing in January 2006, the claimant attempted to reenter the labor market. A job search "log" was produced and lists of places the claimant contends he sought employment from 2006 through 2009 (see CIS doc. # 169805494, filed August 17, 2010). The claimant had actively sought employment from January 2006 through October 13, 2009, when he learned he had prostate cancer. The claimant had not looked for any work subsequent to October 13, 2009. During the three years and ten months he contended he sought employment, the claimant went to various potential employers, including McDonalds, Fridays, Oakwood Apartments, Orange County, Riffon Entity, Lowes, Dunkin' Donuts, Home Depot, Sears, Kohls, Cristy Restaurant, Majestic Plastics, Middletown Village Apartments, and various other businesses. He stated that none of these prospective employers would hire him because of his mandatory use of oxygen, considering it a potential safety hazard. The claimant may have had some additional records besides the list proffered to the Board, but not with him. The claimant had discarded some of his original records when he made the list. He had "cold called" at many of the places, although some of them had placed ads looking for employees. The claimant did not recall which of the entities listed had advertised for employment. He had not signed up for any employment agency, and did not recall the names of the people he spoke to at the various entities.

Following development of the record, the WCLJ found that the claimant had reattached to the labor market in January 2006, and directed awards for the period January 1, 2006, through July 3, 2010, and continuing, at the $400.00 per week PTD rate. These findings were memorialized in a decision filed July 2, 2010.

LEGAL ANALYSIS

Claimant retired in 1993 for reasons solely other than his disability, which did not manifest itself until after his retirement. The record, therefore, supports a finding that claimant voluntarily removed himself from the labor market in 1993, and that he is not entitled to lost wage benefits based on his work-related pulmonary condition because he was not attached to the labor market when he became disabled and did not suffer any reduction in earnings as a result of the disability (see Matter of West v Consol. Edison, 300 AD2d 900 [2002]; Matter of Muno v Consol. Edison, 305 AD2d 885 [2003]).

However, claimant alleges that in 2006, at the age of 74, more than twelve years after his retirement and after he had been classified permanently totally disabled as a result of his work-related pulmonary condition (which required him to use supplemental oxygen), he decided to reenter the labor market. Claimant has produced a log detailing prospective employers that he alleges he made inquiries to, in person, regarding the availability of work, from January 2006 to November 2008, and July 2009 to November 2009. Claimant testified that he stopped searching for work in November 2009 when he was diagnosed with prostate cancer. Although claimant contends that he began searching for employment in January 2006, he did not request that the case be reopened to consider the issue of reattachment to the labor market until November 2009, and did not produce evidence of his alleged job search until July 2010.

Based on the significant delay between claimant's retirement and his alleged efforts to reenter the labor market and, most significantly, his classification with a permanent total disability, the record supports a finding that whatever efforts claimant made to search for work were not made with a good faith intent to obtain employment consistent with his disability. Rather, the record suggests that claimant retired in 1993 with the intention of permanently removing himself from the labor market, that as of 2003 he was totally disabled and had no earning capacity, and that his purported efforts to find work beginning in 2006 were undertaken solely with the intent to obtain lost wage benefits, rather than to obtain employment.

Accordingly, the Full Board finds that claimant's reduced earnings are not due to his disability and he is not entitled to lost wage benefits.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on July 2, 2010, is RESCINDED and a finding is made that the claimant's reduced earnings are not due to his disability and, thus, he is not entitled to lost wage benefits. No further action is planned by the Board at this time.