The Full Board, at its meeting held on October 22, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on November 23, 2012.
The issue presented for Mandatory Full Board Review is whether the claimant maintained a sufficient attachment to the labor market subsequent to May 22, 2009.
The Workers' Compensation Law Judge (WCLJ) concluded that the claimant voluntarily removed himself from the labor market and is not entitled to wage replacement benefits.
The Board Panel majority modified the WCLJ's decision, concluding that the claimant's loss of earnings since May 22, 2009, was causally related to his established injuries.
The dissenting Board Panel member would have affirmed the WCLJ's decision, to find that claimant voluntarily removed himself from the labor market as of May 22, 2009.
The carrier filed an application for Mandatory Full Board Review on December 24, 2012, arguing that the reasoning of the dissenting Board Panel member should be adopted by the Full Board and the WCLJ decision reinstated, as the claimant's own testimony demonstrates that he is not entitled to awards as he has a residual work capacity, yet failed to look for work.
In rebuttal, the claimant argues that the Board Panel majority is correct and is fully supported by the record as developed, as the claimant has an eighth grade education, his cessation from employment was involuntary, he is unable to return to any employment that he is vocationally qualified to perform, and is essentially totally disabled given his education and vocational limitations.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This claim is established for injuries to the claimant's neck and back that occurred on April 6, 2008, when claimant, a driver, was involved in a work-related motor vehicle accident. The record was then developed on the issues of voluntary withdrawal and further causally related disability.
Claimant attempted to return to light-duty work for the employer in June 2008, but he was unable to perform the requirements of the position due to pain relating to his compensable injury, and left after an hour or two. The claimant underwent causally related back surgery on January 13, 2009.
In a memorandum of decision filed on June 23, 2009, the Board Panel found that the claimant's disability contributed to his decision to cease working, which was made after an attempt to work a full time light duty position with the employer, and that the claimant remained attached to the labor market by making an attempt to return to work within his restrictions. However, the Board Panel also found that claimant was obligated to "remain attached to the labor market," and restored the matter to the trial calendar for further development of the record with respect to the claimant's search for employment within his physical restrictions since attempting to work the full time light duty position with the employer, until becoming totally disabled upon having back surgery on January 13, 2009.
Claimant testified on September 9, 2009, and September 16, 2010. He indicated that he worked for the employer for seven-and-a half years delivering newspaper bundles, but had worked overall for thirty-five years. After attempting to return to light-duty work in June of 2008, he applied for work at a grocery store and a card store, but was turned down for both positions because he could not lift boxes, and did not look for any other types of jobs. On cross-examination, the claimant testified that he has not engaged in any form of employment since June of 2008, that he did not seek employment with any other employers, has not sent out any resumes or job applications seeking employment and did not seek any form of retraining since the November 20, 2008, hearing.
In a decision filed on September 14, 2009, the WCLJ found that claimant did not voluntarily withdraw from the labor market, and made awards from April 7, 2008, forward at the rate of $500.00 per week. The carrier requested review of that decision.
In a decision filed on July 6, 2010, the Board Panel modified the WCLJ's September 14, 2009, decision to find that claimant is entitled to awards at the temporary total disability rate of $500.00 from January 13, 2009, to May 22, 2009, awards subsequent to May 22, 2009, would be held in abeyance pending further development of the record on the issues of degree of disability and labor market attachment.
At a deposition held on August 4, 2010, claimant's treating physician, Dr. Corso testified that his last examination of the claimant was on July 27, 2010. The doctor opined that the claimant was not able to return to work. The claimant had restrictions on sitting and standing of more than 10 to 15 minutes, needs to be able to constantly change his position, and had lifting restrictions of 15 to 20 pounds with no squatting, reaching, climbing or prolonged walking. Dr. Corso stated that the surgery was not successful and he does not expect any improvement. Dr. Corso conceded that the claimant is neurologically intact, has no bowl or bladder dysfunction or sexual dysfunction or incontinence, has no atrophy and does not require an assistive device to walk. He is able to take care of his personal hygiene and dress himself. The doctor opined that based upon the 1996 Board Medical Guidelines, the claimant has a partial disability to a marked degree. However, he has not released the claimant to perform any type of work.
At a deposition held on August 19, 2010, the carrier's consulting orthopedist Dr. Killian testified that he examined the claimant five times between May 16, 2008, and November 3, 2009. At the time of the most recent examination, Dr. Killian found that the claimant had a moderate partial disability and could work with restrictions on sitting or standing for longer than 30 to 45 minutes at a time, bending at the waist, and lifting more than ten pounds. Dr. Killian testified that claimant could perform sedentary work, involving sitting at a desk and being able to move around frequently, but that he could not perform filing which required repetitive bending at the waist.
At a hearing held on September 16, 2010, the claimant testified that he stopped going to school in the eighth grade in order to start working to support his family. After working in a grocery store and then at a welding place, he was self-employed for a period of 35 years after purchasing a coffee truck. Claimant then started work for the employer as a driver for a period of approximately seven-and-a half years until he was injured. He has not earned his GED or taken any college courses. While he can read and write in English, he does not use a computer or a cell phone. The claimant has not worked since his January 13, 2009, back surgery and has searched for work only at grocery stores. Dr. Corso specifically informed him on more than one occasion that he could not return to work. The claimant testified that he was, at the time of testimony, 71 years old, had no intention of retiring and would have continued to work but for his work-related injury.
On cross-examination, the claimant testified that he last looked for alternative employment four or five months ago at grocery stores against his doctor's advice. He did not document his search for employment. The claimant testified that he can read and write, has a license and can drive as long as he takes Vicodin. The claimant flies to Florida twice a year and stays for ten days at a time. The only household chore that he presently engages in is taking the garbage out.
In a reserved decision filed on August 9, 2011, the WCLJ determined that the claimant has a marked partial disability subsequent to May 22, 2009, that the claimant is required to make an attempt to secure employment even though he may only have a slim chance of doing so, that the claimant has voluntarily removed himself from the labor market and is not entitled to wage replacement benefits.
In Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 (2012), the Court of Appeals held 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' (Matter of 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 ).
There are two aspects to this showing. First, the claimant must show that the work-related disability was the reason for separation from employment. "In reaching its decision on this question, the Board will, of course, consider the circumstances under which claimant originally stopped full-duty work. 'If the Board determines that a workers' compensation claimant has a permanent partial disability and that the claimant retired from his or her job due to that disability, an inference that his or her reduced future earnings resulted from the disability may be drawn'" (Zamora, 19 NY3d 186 , citing Burns, 9 NY3d 207 ). "An inference of causation may be drawn from the disability-related withdrawal, depending on the nature of the disability and the nature of the claimant's work" (Zamora, 19 NY3d 186 ). The evaluation and permissible inference is the same "regardless of whether claimant has completely retired from the work force or merely withdrawn from the particular employment in which she was engaged at the time of her accident" (id.). In both instances, "the Board may, but need not, infer that the claimant cannot find a suitable job because of her disability" (id.). Secondly, the claimant can show that he or she has found "alternative work consistent with his or her physical limitations, or at least [show] reasonable efforts at finding such work..." (id.). This evidentiary burden, if carried, "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 restrictions identified by both claimant's treating physician and the carrier's consultant, Dr. Killian, establish that claimant is unable to return to any job that he has performed in his working career, or to any other job requiring similar physical ability. Dr. Killian, testified that claimant had severe restrictions, i.e. not being able to sit or stand for more than 30 to 45 minutes at a time, not being able to lift more than 5 to 10 pounds, and not being able to perform repetitive bending from the waist. Thus, claimant was restricted from performing sedentary work. Here, the claimant's treating physician and the carrier's consultant are in agreement that the claimant is unable to return to any job that he previously held or to any other job requiring similar physical ability. The claimant withdrew from the labor market after his effort to return to work was unsuccessful due to the physical limitations caused by his disability. Based on the claimant's work history of physically demanding jobs, failed search for work, lack of an education beyond eighth grade, advanced age, lack of familiarity with computers, and the significant limitations on his ability to work caused by his disability, the claimants restrictions, and ongoing disability, lead the Board to conclude that he is unable to engage in a fruitful job search in accordance with the guidelines set forth in Matter of American Axle, 2010 NY Wrk Comp 80303659.
There are strong indications that claimant may be permanently disabled, and may indeed be practically unemployable, and thus entitled to a determination that he is totally industrially disabled. In assessing the periods subject to review, the Board finds that the claimant's loss of earnings after May 22, 2009, are causally related to his compensable injuries, that claimant has a marked partial disability and that the case should be restored to the calendar to address the issues of permanency and total industrial disability.
ACCORDINGLY, the WCLJ's reserved decision filed August 9, 2011, is modified to find that claimant did not voluntarily remove himself from the labor market as of May 22, 2009; the case is continued to the hearing calendar for the making of appropriate awards subsequent to May 22, 2009. The case is returned to the district office, and shall be scheduled for a medical direction hearing as soon as feasible, following which testimony will be taken on loss of wage-earning capacity, at which time the claimant can present evidence in support of a claim for total industrial disability.