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 filed September 19, 2012.
The issue presented for Mandatory Full Board Review is whether the claimant has reattached to the labor market.
The Workers' Compensation Law Judge (WCLJ) found that the claimant reattached to the labor market as of October 21, 2011, found no compensable lost time from November 30, 2010, to October 21, 2011, and issued awards to the claimant from October 21, 2010, to February 27, 2012, and continuing, at the moderate permanent partial disability rate of $102.05. The Board Panel majority affirmed the WCLJ decision, finding that the claimant has reattached to the labor market through her participation with Workforce Solutions and VESID.
The dissenting Board Panel member determined that the claimant has not reattached to the labor market as she has not shown sufficient participation with One-Stop, Workforce Solutions or VESID to constitute a good faith job search.
In its application for Mandatory Full Board Review, Special Funds Conservation Committee asserts that the testimony and evidence of record does not demonstrate a reasonable search for employment under the standard set forth in American Axle (2010 NY Wrk Comp 80303659), as the claimant has offered virtually no evidence that she sought employment within her restrictions or actively participated in VESID.
In her November 19, 2012, rebuttal, the claimant argues that the opinion of the WCLJ and Board Panel majority that the claimant reattached to the labor market as of October 21, 2011, should be affirmed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On January 27, 1999, claimant, then a 46 year old home health aide, was injured while assisting a patient. This case was initially established for injuries to the claimant's neck and right shoulder, and was subsequently amended to include a consequential left elbow injury. In a decision filed on September 14, 2007, the WCLJ, among other findings, classified the claimant with a moderate permanent partial disability, and concluded that the claimant voluntarily withdrew from the labor market.
In a decision filed on December 3, 2010, liability was shifted to the Special Funds Conservation Committee pursuant to Workers' Compensation Law (WCL) § 25-a effective September 21, 2010.
In an RFA-1LC (Request for Further Action by Legal Counsel) filed on November 14, 2011, the claimant's attorney requested Board action in the form of a hearing based on an allegation that the claimant has reattached to the labor market as of October 21, 2011. Attached to the RFA-1LC were four documents from the Fulton, Montgomery and Schoharie County Workforce Solutions System indicating that the claimant engaged in computer usage, internet browsing and a review of job listings on four occasions between October 21, and November 7, 2011.
In correspondence dated December 9, 2011, the claimant's attorney provided four documents from the Fulton, Montgomery and Schoharie County Workforce Solutions System indicating that the claimant engaged in computer usage, internet browsing and a review of job listings on four occasions between November 16, and December 7, 2011.
At a hearing held on February 27, 2012, the claimant testified that she goes through the classified section of local newspapers and searches internet job sites in any effort to find work. She began attending Workforce Solutions Systems in Gloversville at least once a week starting on October 21, 2011, and is retraining through VESID. While at Workforce Solutions Systems, the claimant uses the computers to search for employment in Fulton and Montgomery counties, reads their newspapers and uses their books, and has entered into the Metrix system to search for jobs. She met with a representative of the Office of Vocational Rehabilitation at the Department of Labor building at 199 South Main Street in Gloversville on July 6, 2011, for orientation and to complete paperwork. She has had several meetings with VESID, and VESID has suggested that she return to college. The claimant has utilized Metrix for updated training in Quick Books. She is still treating with her medical provider.
On cross-examination, the claimant testified that her physicians have placed limitations on her, including working no more than 15 to 20 hours per week, no sitting/standing for extended periods of time, no phone use unless provided headphones, no lifting with her right arm, no repetition with her right arm and a 10 pound lifting restriction. The claimant looks through the newspapers and the internet job sites for work on a daily basis, receives emails from job sites if there is anything available in her area, but has not sent out any applications for employment as she has been unable to find part-time employment. When asked what kind of work she is looking for, the claimant responded that "I'm not really, to be honest with you, I'm not really sure what I can do anymore. That is why I am working through VESID." The claimant testified she has also received employment counseling from the Resource Center for Independent Living. The claimant conceded that she has filed no employment applications in connection with her affiliation with Workforce Solutions. The claimant reiterated that she was either unqualified for available part-time positions, or was physically incapable of performing them.
Although the record contains evidence that claimant's treating orthopedist, Dr. Cecil, imposed restrictions on lifting, repetition and overhead work, there is no medical evidence corroborating the other medical restrictions alleged by the claimant, including the purported restriction against working more than 15 to 20 hours per week.
Moreover, while the claimant has submitted limited documentary evidence to corroborate her participation with Workforce Solutions System of Fulton, Montgomery and Schoharie Counties, the record contains no documentation regarding claimant's purported participation with VESID.
In a decision filed on March 1, 2012, the WCLJ found that the claimant reattached to the labor market as of October 21, 2011, found no compensable lost time from November 30, 2010, to October 21, 2011, and issued awards to the claimant from October 21, 2010, to February 27, 2012, and continuing, at the moderate permanent partial disability rate of $102.05.
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; 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 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 (American Axle, 2010 NY Wrk Comp 80303659).
Active participation at a One-Stop Career Center 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).
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.).
The claimant has submitted no documentary evidence reflecting her alleged participation with VESID, or the details of her independent job search. Moreover, claimant admitted that although she uses the internet and newspapers to look for potential employment, she has not applied for any positions. While the claimant has submitted limited documentary evidence to corroborate her participation with Workforce Solutions System of Fulton, Montgomery and Schoharie Counties, based on claimant's testimony, her participation with Workforce Solutions is insufficient to find that she has reattached to the labor market. Claimant testified that her work-related permanent partial disability prevents her from working more than 15 to 20 hours per week, and that she has filed no employment applications as a result of her participation with Workforce Solutions because she was limiting herself to part-time employment, which was not readily available. However, the record contains no medical opinion that restricts that number of hours per week claimant could work.
Therefore, the Full Board finds that the record does not support a finding that the claimant has reattached to the labor market and is not entitled to benefits from October 21, 2011, forward.
ACCORDINGLY, the WCLJ decision filed on March 1, 2012, is REVERSED. No further action is planned by the Board at this time.