The Full Board, at its meeting on November 19, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on February 4, 2013.
The issue presented for Mandatory Full Board Review is whether the record should have been developed with medical testimony prior to rendering a decision on the claimant's attachment to the labor market.
The Workers' Compensation Law Judge (WCLJ) found that the claimant failed to demonstrate a sufficient job search, and thus is not attached to the labor market.
The Board Panel majority held that the claimant was temporarily totally disabled during the period in question and sufficiently attached to the labor market through her involvement with Workforce One. Thus, she was entitled to receive benefits subsequent to December 11, 2010.
The dissenting Board Panel member found that the claimant had voluntarily removed herself from the labor market in that she had no active participation with One Stop and did not make a good faith effort to seek employment within her medical restrictions.
On March 6, 2013, the self-insured employer filed an application for Mandatory Full Board Review, arguing that the Board Panel majority "erred in reversing the Law Judge's determination that the claimant had failed to sufficiently attach to the labor market and in finding, sua sponte, that the claimant is temporarily totally disabled subsequent to December 11, 2010."
A rebuttal was not filed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On July 30, 2010, the claimant, then a 38 year old maintenance worker, was injured in a work-related motor vehicle accident. The case is established for the claimant's neck and back. The claimant's average weekly wage has been set at $389.45 per payroll and without prejudice. Various awards have been made at various rates through December 11, 2010. The claimant has not been classified with a permanent disability.
In a medical report dated January 4, 2011, the claimant's treating physician, Dr. Saulle, indicated that the claimant experiences neck and lower back pain that is fluctuating in severity. He further indicated that he had given her a note to return to work January 10, 2011, but that she should not be lifting anything over fifteen pounds. Dr. Saulle also recommended that the claimant have a pain management consultation. In various reports from January 2011 until May 4, 2011, Dr. Saulle continued to indicate that claimant was cleared to return to work with a fifteen pound weight lifting restriction, and that her degree of temporary impairment is 75%.
In a report dated February 16, 2011, Dr. Reyfman, the claimant's treating pain specialist, opined that the claimant had a temporary partial marked disability, 80% to 90%. In reports throughout January, February, March and April 2011, Dr. Reyfman indicated a 90% temporary disability and that claimant could not return to work due to "diffuse lower back and neck."
At the hearing on March 30, 2011, the self-insured employer (SIE) raised the issue of unrelated wage loss after December 11, 2010. The SIE's counsel also reserved the right to cross examine each other's physicians. Claimant's counsel indicated, "they have mild, and we have a 75 percent." (3/30/11 hearing transcript, page 6). The WCLJ subsequently continued the case for the claimant's testimony on labor market attachment. In a decision filed on April 1, 2011, the WCLJ found that both sides reserved the right to cross examine doctors and that the case was continued.
In a report dated May 2, 2011, the carrier's consultant, Dr. Westerband, opined that the claimant has a mild causally related disability. In a report dated May 4, 2011, Dr. Saulle indicated that the claimant had a 100% temporary disability, and that the claimant could not return to work due to "pain." Dr. Saulle's subsequent reports indicate the same status, temporary total disability.
Claimant's testimony was taken on July 27, 2011. The claimant testified that she registered with Work Force One, and has been going to Work Force One since March 22, 2011. She noted that she attended an orientation meeting and with their help she has updated her resume. She testified that she went to Work Force One twice in April and twice in May. The claimant also indicated that she has gone there additional times since, but that due to her financial situation, it is difficult to get there. She has looked for work primarily online but also by word of mouth. She applied for five to six jobs (i.e. at gas stations and sneaker stores such as Hess, Shell, BP and Footlocker), but did not bring the printout of the jobs for which she applied. The claimant indicated that she completed eleventh grade in high school and that all of her prior work experience has been manual in nature. She also stated that if she had not hurt herself she would be working at this time. She had documentation with her indicating she had visited Work Force One on April 7, 2011, April 21, 2011, May 24, 2011, and May 26, 2011, and on each of those days utilized the resource room computer lab. A copy of the claimant's Work Force One registration card was filed with the Board on July 29, 2011. The case was continued for the claimant to produce work search documentation and a resume.
In an IME report dated October 3, 2011, Dr. Westerband reported that the claimant's examination did not reveal any objective evidence of a causally related disability. Dr. Westerband further indicated that the claimant was capable of working without restrictions.
The case was returned to the hearing calendar on October 14, 2011, at which time the claimant testified that her treating doctors told her in April 2011 or May 2011 or June 2011 that she could perform light duty work. She thinks the last time she had been to Workforce One was in May 2011, and that she had not sent out her resume, or returned to Workforce One due to financial difficulties in that she was no longer receiving cash public assistance, only food stamps, and had personal issues with her 19 year old son. She brought with her a flash drive containing her work search documentation and resume. These items do not appear in the Board file. At the end of the hearing, the parties placed their summations on the record. It is noted that the SIE's counsel requested cross examination of the claimant's treating physician on the issue of further causally related disability subsequent to October 3, 2011.
In a decision filed on October 19, 2011, the WCLJ found that the claimant failed to demonstrate an active and sufficient job search. The WCLJ further found that the claimant is not attached to the labor market and marked the case no further action planned by the Board at this time.
In an application for administrative review, the claimant requested that the WCLJ's decision filed on October 19, 2011, be rescinded and awards made for the period from December 11, 2010, to October 3, 2011 (date of the SIE consultant's latest report), be made at a total rate of $103.85 and the case be continued for medical testimony. In the alternative, the claimant requested that the finding of withdrawal from the labor market be rescinded and the case restored for medical testimony.
12 NYCRR 300.10(c) provides, in part, that when an employer or carrier desires to produce for cross examination an attending physician whose report is on file, an adjournment shall be granted upon a timely request. Here, as indicated in the April 1, 2011, WCLJ decision, the parties reserved their rights to cross examine the doctors. Moreover, the conflicting medical reports warrant further clarification from the doctors.
Here, based upon a review of the record and the preponderance of the evidence in the record, the Full Board finds that the case should be returned to the trial calendar for a direction from the WCLJ on the setting of medical testimony. The issue of labor market attachment should be held in abeyance pending the resolution of the issue of claimant's degree of disability subsequent to December 11, 2010.
ACCORDINGLY, the decision of the WCLJ filed on October 19, 2011, is MODIFIED as follows: the finding that the claimant has failed to demonstrate an active and sufficient job search and has failed to attach to the labor market is rescinded, without prejudice; and the case is returned to the trial calendar for the setting of medical testimony. The rest of the WCLJ decision remains in effect. The issue of labor market attachment is held in abeyance pending the resolution of the issue of claimant's degree of disability subsequent to December 11, 2010. Pending development of the record, the SIE is directed to continue payments at the tentative mild partial rate of $103.85 per week.