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Case # 09628242
Date of Accident: 11/13/1995
District Office: Peekskill
Employer: Con Edison
Carrier: Consolidated Edison Co of NY
Carrier ID No.: W373005
Carrier Case No.: 96001844
Date of Filing of Decision: 07/12/2013
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 on May 21, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on September 6, 2012.

ISSUE

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

The Workers' Compensation Law Judge (WCLJ) found that the claimant's separation from his employment was unrelated to his disability.

The Board Panel majority modified the WCLJ's decision to reflect that the claimant had reattached to the labor market on December 1, 2009, and remanded the case to the hearing calendar to award compensation benefits.

The dissenting Board Panel member found that the claimant's subsequent job search effort was insufficient to warrant finding of reattachment and entitlement to causally related lost earnings

The self-insured employer filed an application for Mandatory Full Board Review, arguing that the claimant has not met his burden in showing that his post-separation loss of earnings or failure to find employment is due to his work-related disability.

A rebuttal was not filed.

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

FACTS

The claim is established for an occupational disease in the nature of asbestosis (pursuant to Workers' Compensation Law § 3[2][29]), chronic irritative bronchitis, and chronic obstructive pulmonary disorder that became disabling on November 13, 1995. In a decision filed on January 31, 1997, the claimant was classified with a permanent partial disability, no compensable lost time was found, and the self-insured employer (SIE) was found to be entitled to reimbursement pursuant to Workers' Compensation Law § 15(8)(ee).

Claimant settled a third-party action with the SIE's consent for $91,106.50, resulting in a net recovery to claimant of $58,663.89.

The claimant separated from employment with Consolidated Edison on November 2, 2009, and claimant raising the issue of causally related loss of earnings ensued.

At the hearing held on April 8, 2011, the claimant testified that he worked forty-nine years for the employer. His last position was construction manager, overseeing construction sites. The doctors had restricted him from working in a dusty environment. In 2009, the claimant was terminated from his employment for cause. He appealed the termination, and due to his age (69), he was permitted to voluntarily retire from employment and to collect his pension. This determination did not affect his pension eligibility and only concerned the claimant's permanent record with the employer. The claimant stated that his pension is valued at $90,000.00 annually, half of which is payable to his ex-wife, and that he collects Social Security disability insurance benefits of $2,500.00 monthly.

The claimant testified further that he began looking for work in December 2009. He registered with Work Force One, where he attended orientation, developed a resume with the assistance of a counselor, and reviewed job postings on the internet. He testified that he "went online and as the state [Department of Labor] told me to do it and I did it." (Hearing minutes, 4/8/11, p. 15). The claimant also testified that he called the companies listed in the Work Force One internet job search results seeking in-office work in the construction field. He also conducted an independent job search by contacting former colleagues in the construction field. The claimant has been looking for work within the construction field in a managerial/administrative role. The claimant produced documents showing that he performed online job searches, contacted ten businesses from December 14, 2009, to September 23, 2010, and contacted nine businesses from March 28, 2011, to April 4, 2011 (Doc. I.D. Nos. 179263384 and 179263393). The claimant testified that he notified the potential employers of his restriction, "that he could not go into the field," due his lung problem, and that he was seeking work as an estimator/job bidder/job overseer, and that the companies advised him that they had jobs but "99 percent of them, when they were available, was [sic] in the field." (Hearing minutes, 4/8/11, p. 13).

At the hearing held on April 8, 2011, the director of environmental health and safety for the employer testified that the claimant was terminated from employment for reasons unrelated to his work-related disability. Based upon the termination, the claimant would not be permitted to return to work for the employer, even in a light duty capacity.

In a reserved decision filed on May 27, 2011, the WCLJ found that the claimant's separation from employment was voluntary and unrelated to the claimant's occupational diseases.

LEGAL ANALYSIS

"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 [2009] [internal quotation marks and citations omitted]). Further, 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" (Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 [2012]).

Here, the record supports a conclusion that the claimant's separation from employment was due to factors unrelated to his disability. The claimant was able to continue working for fourteen years following the date of disablement. He did not stop working until he was terminated from employment for an unrelated reason, as testified to by the employer witness. Although it was not the claimant's decision to separate from his employment, the termination was not related to his occupational disability (see Matter of Fromm v Rochester Telephone, 22 AD2d 728 [1964]).

Once the Board finds a voluntary removal from the labor market, the claimant must reattach to the labor market before there is a finding of subsequent causally related lost earnings (see Matter of Bacci v Staten Is. Univ. Hosp., 32 AD3d 582 [2006]). As a result, it was incumbent upon the claimant to establish that he was entitled to continuing awards by submitting sufficient evidence of reattachment to the labor market.

Reattachment to the labor market can be demonstrated by credible documentary evidence showing that claimant is: (1) actively seeking work within the restrictions through an independent job search that is timely, diligent, and persistent; (2) actively participating in a job-location service such as New York State's Department of Labor's re-employment services, One-Stop Career Centers, or a job service commonly utilized to secure work within a specific industry; (3) 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; (4) actively participating in a job-retraining program; or (5) attending an accredited educational institution full time to pursue employment within the work restrictions (Matter of American Axle, 2010 NY Wrk Comp 80303659).

At a minimum, if the independent job search is in person, documentary evidence should provide the day, month, and year of the contact; the name and address of the employer; the name and telephone number of the person with whom employment was discussed; the type of job sought; and the response of the potential employer. If the contact was written, copies of the resume submitted if any; the inquiry letter or e-mail communication; or the application completed is necessary along with the day, month, and year submitted, the nature of employment sought, name and address of the employer and the response of the potential employer (id.).

Active participation with a job-location service means calling for an appointment, attending an orientation session, meeting with a One-Stop counselor to develop a resume, registering a resume in the One-Stop system, maintaining contact with the One-Stop Career Center to determine whether there were any job matches, and following up on all job referrals and matches (id).

In addition, when attempting to show a reattachment to the labor market, a claimant "must demonstrate that he had attempted to obtain employment that took into account the restrictions caused by his disability," and has the burden of "demonstrat[ing] that his earning capacity and his ability to find comparable employment had been adversely affected by his disability" (Matter of Smith v Consolidated Edison Co. of N.Y., Inc., 68 A.D.3d 1299 [2009]). In Smith, the court affirmed the Board's finding that claimant had not shown a reattachment to the labor market, noting that "claimant admits that he has not informed any of these prospective employers that he is disabled or that his ability to work is in any way impaired by his disability." [Id.]. In Matter of Harchar v Sarkisian Bros., Inc. (53 AD3d 986 [2008]), claimant was laid-off and subsequently attempted to show that his partial disability played a role in his subsequent wage loss. The Third Department, affirming the Board, found that claimant had failed to meet his burden of showing a connection between his disability and his wage loss, noting that "[a]lthough claimant testified in general terms concerning his attempts to find more lucrative work through his union, there was insufficient proof that he had discussed his disability with prospective employers or that he was denied employment due to his disability" (id.).

Here, the claimant testified that he attended an orientation at Workforce One in December 2009, prepared his resume with the assistance of a Workforce One counselor, and used the computer there to go on line and look for jobs. The claimant produced a packet of job searches he performed through Workforce One. He testified that he "went online and as the state [Department of Labor] told me to do it and I did it" and that he followed up the job search results with phone calls to the potential employers but none of them had work for him. In addition to registering at Workforce One and following through on suggestions made to him by Workforce One, the claimant engaged in an independent job search and produced corroborating documentary evidence of his job search. This was accomplished by contacting old business associates and other businesses in his field. The claimant testified that he advised the prospective employers of his restriction (not being able to work in a dusty environment) and that he was advised that no positions were available within that restriction.

The Full Board finds, based upon a preponderance of the evidence, that the claimant reattached to the labor market as of December 1, 2009, as the claimant's efforts to obtain employment consistent with his permanent partial disability satisfied the requirements set forth in American Axle.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on May 27, 2011, is MODIFIED to find causally related lost time after December 1, 2009. No further action is planned at the present time.