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 26, 2012.
The issue presented for Mandatory Full Board 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 Board Panel majority indicated that a claimant who is classified with a permanent partial disability is entitled to an inference that any subsequent reduction in wages is due to his/her causally related disability, an inference which can only be negated with proof that the claimant's loss of earning capacity is due to some other factor, or proof that the claimant has withdrawn from the labor market or failed to remain attached to the labor market. The Board Panel majority also found that the documents submitted by the carrier indicated that the claimant had cooperated with the carrier's vocational consultant and therefore the evidence was insufficient to negate the inference afforded to the claimant. Further, the Board Panel noted that its findings were made without prejudice, and that the carrier could make additional submissions.
The dissenting Board Panel member found that the carrier's evidence raised a question of fact regarding whether the claimant had cooperated in good faith with the carrier's vocational consultant. The dissenting Board Panel member noted that the claimant did not make any contact with some employers and failed to adequately complete job applications at two other employers. The dissenting Board Panel member 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. The carrier notes that the Board Panel had found that the carrier had presented sufficient evidence to reopen the case in its September 14, 2011, decision, but denied the carrier's request because it failed to copy the claimant's attorney on the correspondence sent to the claimant. The carrier concedes that further development of the record may result in a finding that the claimant remains attached to the labor market, but asserts that it has presented sufficient evidence to raise a question of fact.
The claimant did not file a rebuttal.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, a painter, has an established claim for injuries to the neck, back and right shoulder. In a decision filed March 19, 1998, the Workers' Compensation Law Judge (WCLJ), pursuant to a stipulation between the parties, classified the claimant with a moderate to marked permanent partial disability;70% apportioned to the claimant's prior workers' compensation claim (WCB Case No. 69517433) and 30% apportioned to the present claim. In an amended decision filed October 29, 2003, the case was marked for no further action.
The carrier filed a Form RFA-2 (Request for Further Action by Carrier/Employer) on March 21, 2011, seeking to suspend lost wage benefits as of March 17, 2011, because the claimant voluntarily removed himself from the labor market. In support of the carrier's request, it submitted the reports of CBI Employment (CBI), a vocational assistance firm. In a decision filed on September 14, 2011, the Board Panel found that the evidence submitted by the carrier raised a question of fact regarding whether the claimant's reduction in wage-earning capacity was related to his compensable injury. However, the Board Panel denied the carrier's request to reopen because the carrier's request was based upon correspondence which had not been copied to the claimant's counsel, and therefore the evidence was inadmissible.
The carrier filed a second RFA-2 on February 14, 2012, asserting that the claimant did not sufficiently cooperate with the carrier's efforts to provide vocational assistance. In support of the carrier's application it submitted a January 26, 2012, report from CBI. CBI sought and received permission from the claimant's attorney to talk to the claimant in the preparation of the report. CBI's representative concluded that the claimant was applying for some of the positions sent to him by CBI, but was not doing so in good faith. CBI noted that the claimant was not considered for a position to which he applied at Hertz Rentals because the claimant listed limited availability and would not work in adverse weather conditions. The claimant applied for another position at retailer AutoZone but did not fully complete the application. The claimant also advised CBI that he was unable to complete one application because of his limited reading skills, and was unable to find one of the other job listings on the potential employer's job site.
The case folder also includes thirteen "Application Notices" sent to the claimant regarding open positions within his restrictions. CBI filed follow up reports regarding nine of these notices. CBI was only able to confirm that the claimant applied for two of the positions.
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 ).
In the present case, the carrier presented evidence that CBI had provided the claimant with nine notices of job applications. While the claimant completed applications for two of the job listings, the information obtained by the carrier from the prospective employer indicates that in at least one of those instances, the claimant's application was rejected because he indicated that he had limited availability and would not work in severe weather conditions. The Board Panel previously found that nearly identical evidence raised a question of fact regarding whether the claimant maintained an attachment to the labor market.
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 cooperated in good faith with the carrier's vocational consultant. Therefore, the Full Board finds that the evidence submitted by the carrier is sufficient to warrant re-opening of the claim.
ACCORDINGLY, based upon a review of the evidence submitted with the Form RFA-2 and a preponderance of the evidence in the record, the carrier's application to reopen is GRANTED. The matter is returned to the hearing calendar on the issue of whether the claimant voluntarily removed himself from the labor market.