The Full Board, at its meeting on July 16, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on October 9, 2012.
The issue presented for Mandatory Full Board Review is whether the record supports apportionment of the claimant's permanent marked partial disability to a pre-existing neck condition.
In the notice of decision filed on November 2, 2011, the Workers' Compensation Law Judge (WCLJ) classified the claimant with a permanent partial disability under Workers' Compensation Law (WCL) § 15(3)(w); found that the claimant has sustained a permanent impairment of 75%; found that the claimant ceased working involuntarily; modified the claimant's compensation awards from October 18, 2010, to October 31, 2011, to the temporary partial rate of $400 per week; and directed the self-insured employer (SIE) to continue payments at the permanent partial rate of $400 per week.
The Board Panel majority affirmed the decision of the WCLJ regarding the classification of the claimant, the degree of permanent impairment, claimant's withdrawal from the labor market, and modification of the claimant's compensation awards from October 18, 2010, to October 31, 2011. However, the Board Panel majority disagreed with the WCLJ with respect to the continuation of payments to the claimant, and suspended such payments as of October 31, 2011, due to its finding that the claimant had failed to remain sufficiently attached to the labor market to warrant ongoing benefits. In addition, the Board Panel majority found that legal apportionment of the claimant's neck disability is not warranted.
The dissenting Board Panel would have found that "claimant's compensability disability should properly be made subject to apportionment with her pre-existing condition," finding that, "the claimant suffered from a pre-existing, disabling condition that gradually worsened until such time as the accident of record acted upon that existing disability and rendered the claimant incapable of continued employment."
On November 8, 2012, the SIE filed an application for Mandatory Full Board Review, arguing that claimant had a pre-existing neck condition and that prior to the incident on June 13, 2005, the claimant was symptomatic for years and had lost time from work as a result of this pre-existing condition, and therefore "there should be a legal finding of apportionment."
No rebuttal was filed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This case is established for a work-related injury to the claimant's neck, resulting from an accident which occurred on June 13, 2005, when the claimant was lifting a patient forward to place a cassette behind him for purposes of performing a portable x-ray.
The SIE's consulting physician, Dr. Rosner, examined claimant on three occasions. All three examinations yielded similar findings and conclusions with respect to the diagnosis of the claimant's condition, as well as the causation of that condition. In reports dated May 1, 2008, February 24, 2010, and March 14, 2011, Dr. Rosner diagnosed the claimant with compressive cervical radiculopathy and significant degenerative disc disease, derived from longstanding degenerative cervical disc disease, primarily at the C4-C5 level. Dr. Rosner further opined that it was not plausible that the claimant's cervical and upper extremity complaints were derived from the singular act of lifting a patient. Dr. Rosner concluded that the claimant's injuries were not causally related to the incident on June 13, 2005. In his report dated March 14, 2011, Dr. Rosner further concluded that the claimant has a moderate partial disability which is not causally related to the incident on June 13, 2005, "but rather results from degenerative changes of the cervical spine."
During a deposition on September 9, 2011, Dr. Rosner testified in accordance with the aforementioned reports. Upon cross-examination, Dr. Rosner conceded that he has no recollection of having reviewed the claimant's medical records from before the June 13, 2005, accident date, and he acknowledged that the claimant was working in a full-duty capacity for the employer prior to the June 13, 2005, accident.
Dr. Unis began treating the claimant on October 18, 2010, and his medical reports reveal that he has consistently diagnosed the claimant with chronic cervical radiculitis with spinal stenosis. Dr. Unis, in his medical reports, opined that the cervical radiculitis was causally related to the claimant's accident on June 13, 2005, and that the spinal stenosis is secondary to the June 13, 2005, injury. In an addendum to his medical report dated June 14, 2011, Dr. Unis found the claimant to have a marked permanent partial disability.
During a deposition on September 21, 2011, Dr. Unis testified in accordance with his medical reports. Dr. Unis acknowledged that the claimant's medical records did reveal a history of neck problems pre-dating the accident of June 13, 2005. However, he added that the claimant's medical history does not indicate that her pre-existing neck problems had ever caused her to lose time from work.
At a hearing on October 28, 2011, the claimant testified that none of her treating doctors have released her to return to work in her pre-accident employment as an x-ray technician. The claimant further acknowledged that she has not worked or searched for alternative employment since the June 13, 2005, accident. The claimant asserted that she stopped working for the employer due to her work-related neck injury. The claimant further explained that she had to stop working because her employment as an x-ray technician often involved lifting and moving patients who are relatively immobile and that her employer does not provide light-duty assignments. Upon cross-examination, the claimant acknowledged that she lost three days from work due to a neck problem approximately 15 years prior to the June 13, 2005, accident. The claimant asserted that any neck issues she experienced during the 15-year interim period, leading up to the June 13, 2005, accident, were minor in comparison. She further testified that she did not sustain any lost time from work due to her neck condition during this same 15-year interim period, but that she had lost time from work due to back pain.
In the notice of decision filed on November 2, 2011, the WCLJ classified the claimant with a permanent partial disability under WCL § 15(3)(w); found that the claimant has sustained a permanent impairment of 75%; found that the claimant ceased working involuntarily; modified the claimant's compensation awards from October 18, 2010, to October 31, 2011, to the temporary partial rate of $400 per week; and directed the SIE to continue payments at the permanent partial rate of $400 per week.
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 ).
Attachment to the labor market can be demonstrated by credible documentary evidence showing that a claimant is actively seeking work within his restrictions through an independent job search that is timely, diligent, and persistent; 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; is actively participating in vocational rehabilitation through VESID [now known as ACCES-VR] or other board-approved rehabilitation program; is actively participating in a job-retraining program; or is attending an accredited educational institution full time to pursue employment within his work restrictions (Matter of American Axle, 2010 NY Wrk Comp 80303659).
Whether a claimant actually maintains an attachment to the labor market sufficient to justify continued compensation benefits is a factual determination for the Board to resolve (Matter of Rothe v United Med. Assoc., 18 AD3d 1093 ).
In this case, during the hearing on October 28, 2011, the claimant conceded that she has not worked or searched for work since June 13, 2005. Thus, the Full Board finds that subsequent to the October 28, 2011, hearing, the claimant is not entitled to a continuation of her compensation benefits for causally related lost time. If the claimant seeks to establish her reattachment to the labor market in the future, the claimant must produce credible documentary evidence of an independent search for employment within the restrictions of her partial disability that is timely, diligent, and persistent, or she must produce documentation of her active participation in one of the alternative means for establishing a reattachment to the labor market, as recognized by the Board's American Axle decision.
Apportionment is not applicable as a matter of law where the pre-existing condition was not the result of a compensable injury, and the claimant was able to effectively perform his or her job duties at the time of the work-related accident despite the pre-existing condition (Matter of Peck v Village of Gouverneur, 15 AD3d 735 , lv denied 5 NY3d 707 ). The "dispositive issue is not whether a claimant's pre-existing condition was symptomatic but, rather, whether such condition was disabling" (Matter of Bruno v Kelly Temp Serv., 301 AD2d 730 ).
In the present case, the record contains evidence that the claimant experienced issues with her neck prior to the work-related accident on June 13, 2005, which caused her to miss work approximately 15 years earlier. However, nothing in the record indicates that the claimant's pre-existing neck condition was the result of a prior compensable injury. In addition, the record shows that the claimant was working in a full-duty capacity as an x-ray technician for the SIE prior to the accident on June 13, 2005, despite her pre-existing condition. Therefore, the preponderance of the evidence supports a finding that apportionment of the claimant's permanent marked partial disability to a pre-existing neck condition is not appropriate.
Therefore, the Full Board finds, based upon a preponderance of the evidence, that the claimant is classified with a permanent partial disability which is marked in degree (corresponding to a 75% medical impairment); that there is no basis in this case record to warrant legal apportionment of the claimant's neck/cervical spine disability; that the claimant's compensation awards from October 18, 2010, to October 31, 2011, are properly made at the temporary partial rate of $400 per week; that continuing awards are properly suspended as of October 31, 2011; and that, given the suspension of continuing benefits and in view of the limited amount of money actually moving to the claimant as a result of this decision, the claimant's licensed representative's fee is properly reduced to $1,500.
ACCORDINGLY, the WCLJ decision filed on November 2, 2011, is MODIFIED to rescind the continuation of the claimant's indemnity benefits subsequent to October 28, 2011, until the claimant is able to satisfactorily establish her reattachment to the labor market consistent with the Board's standards set forth in American Axle, 2010 NY Wrk Comp 80303659. In addition, the licensed representative's fee is reduced to $1,500. As so modified, the decision is otherwise AFFIRMED. No further action is planned by the Board at this time.