The Full Board, at its meeting held on March 19, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on June 15, 2012.
The issue presented for Mandatory Full Board Review is whether the claimant is entitled to awards for any dates subsequent to May 3, 2010.
The Workers' Compensation Law Judge (WCLJ) found that the claimant's lost time since May 3, 2010, is due, at least in part, to his causally related back pain;, and made awards for the period from August 16, 2010, to April 25, 2011, and continuing, at the temporary moderate rate of $345.40 per week.
The Board Panel majority rescinded the awards made by the WCLJ, finding that the claimant's separation from employment was not due to the work-related disability and that the claimant's post-separation loss of earnings is not due to the work-related disability.
The dissenting Board Panel member would have affirmed the WCLJ and found that the claimant's loss of earnings was due to the work-related disability.
In his application for Mandatory Full Board Review filed on July 10, 2012, claimant argues that the WCLJ properly found that his lost time was related in part to his back injury and requests that the Board Panel majority decision be rescinded.
In a rebuttal filed with the Board on August 6, 2012, the carrier argues that the Board Panel majority correctly found that the claimant is not entitled to ongoing indemnity benefits. The carrier argues that the claimant has not met his burden to show that his last separation from employment in May 2010 was caused by the work-related back injury that occurred in December 2003.
Upon review, the Full Board votes to adopt the following findings and conclusions.
In an administrative decision filed on September 12, 2005, this claim was established for a low back injury that resulted from an accident that occurred on December 19, 2003. Because claimant missed less than seven days of work as a result of the injury, no awards were made. The accident occurred when the claimant was moving a machine from a van while he was working for the employer as a maintenance supervisor.
The claimant has consistently treated for his back injury since his accident. However, the claimant has never been classified as permanently partially disabled.
It is undisputed that the claimant had prior unrelated bilateral knee injuries.
The Board's file contains the following medical reports of the claimant's treatment for his work-related back injury on dates in 2010:
C-4.2 reports of examinations on January 12, 2010, and March 16, 2010, prepared by Steven Lebitsch, N.P., and signed by supervising physician, Dr. Sharma, indicate that the claimant was out of work and totally disabled from employment.
A report for treatment rendered on August 16, 2010, prepared by Steven Lebitsch, N.P, which is not countersigned by a physician.
A C-4.2 report of an examination on October 19, 2010, is signed by Dr. Virk and indicates that the claimant was out of work and totally disabled from employment.
A C-4.2 report of an examination on October 22, 2010, is signed by Dr. Perkins and indicates that the claimant was out of work and totally disabled from employment.
The claimant's attorney filed an EFRA-1 form on December 2, 2010, to request a hearing because the claimant had been out of work since May 3, 2010, and his doctors have indicated that he has a 100% temporary impairment.
At the hearing held on February 25, 2011, the claimant testified that he had worked thirty-four years for the employer, and his last position was maintenance supervisor/facility manager, which required him to oversee the employees' work and production. This job was not physical. His physician had placed him on a five to ten pound lifting restriction and also restricted him from working more than 40 hours per week. The employer prohibited him from lifting heavy items. He worked in this capacity until June 2009, when the employer closed its operation resulting in the claimant's lay off from employment. Subsequently, he found employment with Ketchman Fence, where he installed electric gates, camera systems, and air pumps for ponds. This job required a lot of physical work, but he had another guy working with him to do the heavy work. He worked at this job for four to five months through November 2009, when he went out of work for left knee surgery. Dr. Hendler, the claimant's attending physician, instructed him to find lighter-duty employment because of his knee condition. In March 2010, the claimant obtained employment with Knapp Electric. It was a full-time job, but the claimant often worked part-time hours because he was undergoing physical therapy for the knee. He last worked on May 3, 2010, because at that time, Dr. Strober, his primary care physician, took him out of work. He stopped working due to back pain and knee pain. The pain prevented him from getting in and out of vehicles. The claimant described a gradual worsening of his back condition without any specific incident. Between when he left the employer and when he worked at Knapp Electric, the claimant was still being told by his doctors that he should restrict his work to no more than 40 hours per week, and to lift no more than five to ten pounds. He has applied for Social Security disability insurance, listing the back and knee as the disabling conditions. The claimant works out at a gym, riding a bike for six miles and using weight machines.
Dr. Virk testified on March 10, 2011, that the claimant has treated in his medical office for the back injury since 2004, and that much of the treatment is provided by a nurse practitioner, Steven Lebitsch. Dr. Virk has never personally examined the claimant and he reviews only some of the medical reports prepared by Steven Lebitsch. The claimant is capable of working with restrictions of no lifting more than ten to twenty pounds, no repetitive bending or twisting, and the ability to change positions every twenty to thirty minutes. The claimant has had those restrictions since his original injury in December 2003. These restrictions would imply a partial disability; the claimant could work in some capacity.
Dr. Perkins testified on March 21, 2011, that the claimant had been treated conservatively throughout the entire time, including physical therapy, medications, and injections. The claimant's condition has remained essentially unchanged throughout the treatment and the claimant's condition is currently stable. On August 23, 2005, Dr. Perkins advised the claimant to avoid certain activities, such as heavy lifting, repetitive lifting, torqueing, bending and twisting at the waist, and prolonged sitting and standing. As of August 2005, the claimant had a causally related "mild, permanent, partial disability" (Hearing Transcript, 3/21/11, p. 6). Dr. Perkins most recently saw the claimant "the other day" and he remains essentially unchanged. He continues to suffer from back pain, with activity restrictions similar to those he was found to have in August 2005. He continues to have a "moderate permanent disability due to his back" (Hearing Transcript, 3/21/11, p. 9). Dr. Perkins was aware that the claimant stopped working for the employer due to the lay off and he does not recall ever advising the claimant that he should stop working due to the back injury.
In a reserved decision filed on April 28, 2011, the WCL found that, based on the credible evidence in the record, the claimant's lost time since May 3, 2010, is due, at least in part, to his causally related back pain. The WCLJ explained that "[f]ollowing his work accident, the claimant returned to work light duty for a number of years until his employer went out of business. He subsequently worked for several employers until he had to stop working [on May 3, 2010] due to back pain from this accident and also leg pain from an unrelated accident." The WCLJ found no medical evidence to make awards for the period from May 3, 2010, to August 16, 2010, but found that for the period subsequent to August 16, 2010, the claimant has provided medical evidence of " causally related moderate temporary partial disability." The WCLJ made awards for the period from August 16, 2010, to April 25, 2011, and continuing, at the temporary moderate rate of $345.40 per week. In a supplemental decision filed on May 20, 2011, the WCLJ granted a fee in the amount of $1,865.00 to the claimant's attorney.
Initially, based on the claimant's ERFA-1, the only time period for which the claimant is requesting awards are those dates subsequent to May 3, 2010, when he alleges that he stopped working because his doctors indicated that he has a 100% temporary impairment.
"Whether a claimant has voluntarily withdrawn from the labor market is a factual issue for the Board to resolve … The Board, furthermore, has broad authority to resolve factual issues based upon the credibility of witnesses" (Matter of Renteria v Santino's Cafe, 62 AD3d 1233  [internal quotation marks and citations omitted]).
Here, the claimant testified that he last worked on May 3, 2010, because at that time, Dr. Strober took him out of work. However, the claimant's testimony is not supported by any medical evidence in the record. Specifically, although the claimant testified that he stopped working at Knapp Electric due, at least in part, to back pain and knee pain, there is no medical evidence in the record (from Dr. Strober or any other physician) during this time period to confirm that the claimant's back pain had anything to do with his decision to stop working. There is also no medical evidence in the record to support the claimant's allegation that he became totally disabled on May 3, 2010.
Therefore, the Full Board finds that the claimant voluntarily removed himself from the labor market on May 3, 2010.
In Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 (2012), the Court of Appeals made clear 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 ). Similarly, a claimant with a temporary partial disability must look for work within the limits of his or her partial disability (Matter of Robert D. Anderson Co Inc, 2012 NY Wrk Comp G0016823; see generally Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 ).
Here, although Dr. Perkins testified that the claimant has a permanent partial disability, either mild or moderate in degree, the claimant has not previously been classified as permanently partially disabled by the Board. Therefore, notwithstanding the finding that the claimant voluntarily removed himself from the labor market on May 3, 2010, the claimant would be entitled to awards during those periods for which there is medical evidence of his temporary partial disability, and evidence of his reattachment to the labor market.
Reattachment to the labor market can be demonstrated by credible documentary evidence showing that the claimant is actively seeking work, within medical 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 Adult Career and Continuing Education Services - Vocational Rehabilitation (ACCES-VR) f/k/a VESID 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 the 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 ). As the Court of Appeals held in Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 (2012), "[b]y finding alternative work consistent with his or her physical limitations, or at least showing reasonable efforts at finding such work, the claimant can prove to the Board that the cause of his or her reduced income is a disability, rather than unwillingness to work again" (id.).
Here, the Board's file is devoid of any medical records from March 16, 2010, until August 16, 2010, and the Full Board finds that the August 16, 2010, report is not reliable because it was not signed by a medical doctor. After August 16, 2010, the claimant was next examined by Dr. Virk and Dr. Perkins on October 19, 2010, and October 22, 2010, respectively, and both reports indicate that the claimant was out of work and totally disabled from employment. However, both Dr. Virk and Dr. Perkins testified that the claimant was able to work in some capacity. Dr. Virk testified that the claimant has a partial disability and is capable of working with restrictions of no lifting more than ten to twenty pounds, no repetitive bending or twisting, and the ability to change positions every twenty to thirty minutes. Dr. Perkins testified that the claimant was advised to avoid certain activities, such as heavy lifting, repetitive lifting, torqueing, bending and twisting at the waist, and prolonged sitting and standing. While Dr. Perkins' testimony was inconsistent regarding the degree of the claimant's disability, he clearly testified that the claimant has a partial disability. Despite this evidence of partial disability, the claimant alleges that he is unable to work in any capacity, and as such, the record contains insufficient evidence of the claimant's reattachment to the labor market after May 3, 2010.
Therefore, the Full Board finds that, based on the evidence in the record, the claimant was not entitled to ongoing awards since he has not demonstrated sufficient evidence of his attachment to the labor market.
Finally, since no awards are currently being made to the claimant, the decision filed on May 20, 2011, in which a fee in the amount of $1,865.00 was released to the claimant's attorney must also be rescinded.
Accordingly, the WCLJ reserved decision filed April 28, 2011, is MODIFIED to rescind the awards made; to find that the claimant voluntarily removed himself from the labor market on May 3, 2010; and to find that the claimant is not entitled to ongoing awards since he has not demonstrated sufficient evidence of his attachment to the labor market. The decision filed on May 20, 2011, is RESCINDED. No further action is planned by the Board at this time.