The Full Board, at its meeting on March 19, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on June 5, 2012.
The issue presented for Mandatory Full Board Review is whether the claimant removed herself from the labor market by refusing a light duty job offer.
In a decision filed on November 10, 2011, the Workers' Compensation Law Judge (WCLJ) found that the claimant unreasonably refused a light duty job offer which the self-insured employer (SIE) made to her on November 16, 2010.
The Board Panel majority found that the claimant reasonably refused the employer's return to work offer and that the claimant has not voluntarily removed herself from the labor market.
The dissenting Board Panel member found that the SIE made a suitable offer of light duty employment which sufficiently accommodated her medical restrictions and that the claimant voluntarily removed herself from the labor market by unreasonably refusing that position.
On July 2, 2012, the SIE filed an application for Mandatory Full Board Review, arguing that the claimant voluntarily withdrew from the labor market effective November 16, 2010, when she rejected the SIE's light duty job offer.
On July 19, 2012, the claimant filed a rebuttal, asserting she was offered a position inconsistent with her medical limitations, and thus her refusal to accept that position did not constitute a voluntary withdrawal from the labor market.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On July 6, 2010, the claimant, then a 28 year old certified nursing assistant, sustained an injury to her back while at work. The case was established for the claimant's back. AWW was tentatively set at $416.61, but then made permanent at $552.65. By decision filed on April 26, 2011, awards were made at partial disability rates from July 7, 2010, to October 27, 2010, with continuing awards held in abeyance.
In reports dated November 9, 2010, November 15, 2010, and January 18, 2011, the claimant's treating physician, Dr. Musto, opined that the claimant's causally related disability was of a mild to moderate degree. Dr. Musto noted work restrictions to lifting, bending, twisting, climbing, kneeling, squatting, pushing and pulling.
In a report dated November 12, 2010, another treating physician, Dr. Lovely, opined that the claimant was 100% disabled from her usual work as a certified nurse's assistant. Dr. Gordon, a colleague of Dr. Lovely, reported a 75% disability as of his examination of the claimant on January 11, 2011.
At a hearing held on June 2, 2011, the claimant testified that she was injured at the nursing home where she worked on July 6, 2010, and she has not returned to work since that date. The claimant had worked as a Certified Nursing Assistant since 2007. The SIE contacted her and offered her a position as a "Personal Care Associate," which entailed making beds, passing linens, cleaning closets/wardrobes, and transporting residents to and from activities, and to and from doctors' appointments. The claimant's restrictions included a prohibition from pushing or pulling more than fifteen pounds, which was a required activity in this position. In addition, the claimant was not supposed to raise her arms above her head, which also was required with this position. The claimant also was not supposed to climb stairs and the position offered to her required pumping the beds up so that they could be made. Dr. Musto placed the medical restrictions on the claimant. The claimant advised the SIE that many of the duties involved with this position were outside of her medical restrictions and therefore she declined the offer. The claimant spoke with two different people from work about the offer, but did not speak about the specific duties of the light duty position, just that it would be for a Personal Care Associate position. The SIE did not offer the claimant any other type of position. On cross-examination, the claimant admitted that the weight restriction placed on her by Dr. Musto in October 2010 was a thirty (not fifteen) pound push/pull restriction and a fifteen pound generic lift restriction, and that she might have had the fifteen and thirty restrictions confused. The claimant never saw a written description of the light duty return to work assignment. The claimant did not discuss the light duty position in person with anyone at the SIE, only over the phone. The claimant was shown a document entitled "Nursing Department Return to Light Duty" with her name listed at the top. The document was marked as the SIE's Exhibit "A" to the hearing. The document listed the specific job duties and restrictions. The claimant conceded that she was able to perform some of the duties listed. The claimant also admitted that in the event there was a duty that she was not able to perform alone, there were other nurses available to assist her. On re-direct, the claimant testified that the job duties listed in the form were not substantially different from what she was doing as a certified nursing assistant.
At the same hearing, the director of nursing for the employer testified that a light duty job was designed for the claimant, based upon the restrictions noted by the claimant's treating physicians. The director of nursing produced a job description that set forth the duties that the claimant would be expected to perform. The director of nursing admitted that she did not speak to the claimant about her potential return to work in a light duty capacity. A clerk was directed to handle that task, and contacted the claimant on November 16, 2010. The director of nursing conceded that she had no personal knowledge as to whether or not the claimant was presented with a description of the duties she would be required to perform, or told how these duties fit within the claimant's medical restrictions in existence at that time. The director of nursing further indicated that once the claimant returned to work, the job could be modified if the claimant encountered difficulties.
Dr. Lovely testified on September 6, 2011, that if the claimant was offered a job making beds, passing linens, cleaning closets, pushing wheelchairs with patients in them, she would not have been capable of doing so in November 2010. The claimant did not discuss any job offers with him.
Dr. Musto testified by deposition on September 7, 2011, that as of November 15, 2010, the claimant restrictions consisted of standing and walking no more than four to six hours; changing positions every ten to fifteen minutes for comfort; bending squatting, kneeling occasionally; no climbing, pushing or pulling more than twenty pounds, and no lifting more than ten pounds. The claimant never spoke to him about a job offer. Dr. Musto was shown the document entitled "Nursing Department Return to Light Duty" (the SIE's Exhibit "A") and based on the description therein, he would have recommended that the claimant try the job.
By reserved decision filed November 10, 2011, the WCLJ found that the claimant unreasonably refused the employer's offer of light-duty work and that the claimant voluntarily removed herself from the labor market.
"[T]he question of whether a claimant's failure to accept a light-duty assignment constitutes a voluntary withdrawal from the labor market is a factual issue for the Board to resolve and, if supported by substantial evidence, its decision in this regard will not be disturbed (see Matter of Peluso v Fairview Fire Dist., 269 AD2d 623 ). A review of the pertinent case law reveals, however, that this rule presupposes that the employer actually offers the claimant a light-duty position that, upon review, is consistent with his or her medical limitations (see Matter of Korczyk v City of Albany, 264 AD2d 908 ; Matter of Konz v Universal Joint Sales, 262 AD2d 819 ; Matter of Willis v Auxiliary Servs. Corp., 256 AD2d 803 ; Matter of Serwetnyk v USAir, Inc., 249 AD2d 631 ; Matter of Muzio v City of Albany, 151 AD2d 883 ; see also Matter of Turner v Erie County Med. Ctr., 250 AD2d 1020 )" (Matter of Hatter v New Venture Gear, 305 AD2d 757 ).
Here, the record reflects that while a document exists (SIE's Exhibit "A") that outlines a well-defined light duty job offer that was seemingly substantially within the claimant's medical restrictions at the time, the claimant testified that she never received this document. The director of nursing for the SIE testified that she did not know whether the claimant had been provided with the light duty job offer in writing. She stated that a clerk had been designated to handle the task of communicating the job offer to the claimant. The claimant testified that the individuals with whom she spoke about the offer did not provide the specifics of the job. Rather, the clamant was told that she was being offered a "Personal Care Associate" position, which she believed entailed job duties outside of her medical restrictions. Thus, here, the issue is not whether the light duty job offer was consistent with the claimant's medical limitation, but rather, whether it was properly communicated to the claimant. The document itself does not indicate that it was mailed or otherwise provided to the claimant. Moreover, the SIE's director of nursing did not know whether the offer had been made in writing. The SIE offered no other evidence to suggest that the details of the position were made known to the claimant at the time of making the offer.
The preponderance of the evidence in the record supports a finding that the SIE failed to convey to the claimant an offer of light duty which was within her restrictions. Therefore, claimant did not remove herself from the labor market by failing to accept the SIE's proposed offer of employment (see Matter of Smith v Waterview Nursing Home, 13 AD3d 744 ; Hatter v New Venture Gear, 305 AD2d 757 ).
Based upon a preponderance of the evidence, the Full Board finds that the SIE failed to convey to the claimant an offer of light duty which was within her restrictions. Therefore, claimant did not remove herself from the labor market by failing to accept the SIE's proposed offer of employment.
Accordingly, the WCLJ reserved decision filed on November 10, 2011, is MODIFIED to find that the SIE failed to convey to the claimant an offer of light duty which was within her restrictions, and that claimant did not remove herself from the labor market by failing to accept the SIE's proposed offer of employment. The WCLJ decision otherwise remains in effect.
The matter is remitted to the trial calendar for the WCLJ to make appropriate awards consistent with this decision.