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Case # G0251821
Date of Accident: 07/20/2009
District Office: NYC
Employer: Con Edison
Carrier: Consolidated Edison Co of NY
Carrier ID No.: W373005
Carrier Case No.: A978401003-0001-01
Date of Filing of Decision: 11/07/2013
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 held on October 22, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on January 9, 2013.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether the claimant's retirement from the employer was voluntary; and
  2. whether the claimant has presented sufficient evidence of her attachment to the labor market.

In a reserved decision filed on December 8, 2011, the Workers' Compensation Law Judge (WCLJ) found that the claimant's retirement was voluntary, and that she had presented insufficient evidence of her attachment to the labor market.

In a Memorandum of Decision filed January 9, 2013, the Board Panel majority affirmed the WCLJ's decision, finding that the claimant voluntarily retired from her employment, and that she is not entitled to benefits since she also failed to search for any work within her restrictions after leaving her employment.

The dissenting Board Panel member concurred with the Board Panel majority's finding that the claimant failed to establish a post-separation attachment to the labor market but would have found "that the record supports the conclusion that the claimant did not voluntarily remove herself from the labor market by refusing a legitimate light duty job offer from the employer herein."

In her application for Mandatory Full Board Review filed on February 7, 2013, the claimant argues that the Board Panel majority decision was incorrect and should be reversed. The claimant requests a finding that her initial separation from employment was involuntary since her retirement was due at least in part to her compensable injury. The claimant further contends that no valid light duty offer of employment was ever made to the claimant since no offer was made in writing and no specific light duty position, with specific tasks outlined to show that the work is consistent with the claimant's limitation, was offered. The claimant further argues that the finding that she was not attached to the labor market was incorrect based on Matter of American Axle because she submitted evidence that she registered with Work Force One, that she has continued to visit Work Force One, and that she has also conducted an independent job search in an effort to find employment.

In a rebuttal filed with the Board on April 12, 2013, the attorneys for the self-insured employer (SIE) and its workers' compensation administrator request that the Board Panel majority decision be affirmed. The SIE argues that the claimant's reliance on the fact that no valid light duty offer of employment was ever made to the claimant is misplaced since the medical evidence in the record reveals that the claimant was capable to returning to work at her regular job for the employer. The SIE further argues that there is insufficient credible evidence of the claimant's attachment to the labor market.

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

FACTS

On July 20, 2009, claimant, then a 55 year old senior analyst at Con Edison, was injured when she tripped over a box she was unpacking. This claim is established for injuries to the left knee and left shoulder. No finding of permanency has been made.

Dr. Strauss, the SIE's consultant, submitted an IME-4 (Practitioner's Report of Independent Medical Examination) based on an examination on April 1, 2010, in which he noted the following findings with respect to claimant's left knee: claimant ambulates with an antalgic gait; the girth of the left knee is greater than that of the right knee; there is quadriceps atrophy on the left side; mild defects in range of motion; crepitus underneath the patella; and pain to palpation. Dr. Strauss found that the claimant's muscle tone was adequate, found no instability in the patella or ligament, and found no evidence of chronic pain syndrome. Dr. Strauss found that the claimant appears to be recovering from surgery to her left knee and he opined that she is able to resume part-time work but that she should avoid long periods of standing, bending, and squatting. Dr. Strauss recommended that the claimant continue with pain management and physical therapy.

In an addendum letter dated April 15, 2010, Dr. Strauss clarified that at the time of the examination on April 1, 2010, there was no evidence of Reflex Sympathetic Dystrophy or Regional Pain Syndrome. The claimant is currently mildly disabled and can return to work on a full-time basis with "slight restrictions" of avoiding long periods of standing, bending, and squatting.

Dr. Kushnerik, the claimant's treating pain management physician, submitted a narrative report of an examination on April 5, 2010, and noted the claimant's complaints of worsening pain in the left knee. The claimant reported that the pain was continuous and caused her difficulty with walking and performing activities of daily living. The pain does not improve with anything and is aggravated by walking, activity, standing, cold, and sitting. Dr. Kushnerik diagnosed pain in joint, lower leg, and Reflex Sympathetic Dystrophy of the lower limb. Dr. Kushnerik noted that the claimant was not working and opined that the claimant was 70% disabled.

In a decision filed on January 10, 2011, the WCLJ directed the SIE to produce the claimant's occupational health records from 2010, and continued the case.

At the hearing held on March 9, 2011, the claimant testified that she is retired and that she also received social security because of her work injury. She had not received light duty prior to putting in her papers for retirement. The claimant had been examined by a doctor at the SIE on March 31, 2010, and he told her that she had to be back to work on April 2, 2010. However, the claimant explained that she had an appointment for an independent medical examination on April 1, 2010, as well as an appointment with her own doctor on April 5, 2010. A letter was sent to the claimant on April 7, 2010, from the employer which informed her that if she did not return to work by April 9, 2010, she would be terminated. She viewed her options and decided that she should take early retirement. The letter did not say anything about light duty. Neither the independent medical examiner nor her own doctor had released her back to full duty. She had an exit interview on April 22, 2010, and there was no offer of light duty at that time. On her exit paperwork, the claimant wrote that she was retiring due to the accident on July 20, 2009, because she was not able to return to work. No disability pension was offered to the claimant.

In January 2011, claimant enrolled in Work Force One. She has been there three times, and they have emailed her information about a few jobs, but the jobs listed required standing or sitting for long periods of time, which she cannot do. The WCLJ asked the claimant some questions to clarify her testimony about the exit interview and she explained that the employer did offer her light duty but only after she requested retirement. She told the employer that she could not accept the offer and when the WCLJ asked her why, she explained that no one told her what type of light duty the job would involve. The claimant further stated that the nature of her previous job as a scheduler was stressful since she was on call 24 hours once every seven weeks and she was no longer able to function in that capacity. On cross-examination, the claimant confirmed that she had surgery in December 2009, and that her doctor told her that she could return to work in some capacity in April 2010. The doctor told her that she was 70% disabled. She confirmed that she was released to return to work with restrictions on April 2, 2010, but she did not return to work. The WCLJ noted the return to work report has a temporary restrictions code of "9101," but that "we don't know what that means" (Hearing Transcript, 3/9/11, p. 29). The claimant stated that she never saw this report and she does not know what the code means. The claimant used vacation time after that. She does not know if sick time was available for her to use at that time. She chose to retire early because she was afraid to be terminated. At the exit interview, she was never given a written light duty job offer and she was not given a job description for the light duty job. She was not planning to retire at age 55 or 56. The claimant confirmed that since March 2010, she has not accepted an offer to work, she has not been paid for any work, she has not been on any interviews, and she has not applied for any specific job or answered any job ads (Hearing Transcript, 3/9/11, pp. 34-35).

On March 10, 2011, the Board received documentation related to the claimant's retirement (ECF Doc ID #177819465) and the "Record of Interview" indicates that the claimant stated that her reason for retirement was due to the injury that occurred at work on July 20, 2009. She explained that she had no choice but to retire because she was unable to return to work when the employer required her to do so. The claimant had informed the employer of her decision to retire in an email dated April 12, 2010 (ECF Doc ID #177819465, p. 12). The employer responded to the claimant in a letter dated April 15, 2010, in which the employer's Human Resource Senior Specialist acknowledged that health concerns were the reason for the claimant's retirement and informed the claimant that the employer was interested in having the claimant evaluated by its Occupational Health Department to determine whether she would be able to perform light duty work.

On June 14, 2011, the claimant's supervisor at the employer testified that the work performed by the claimant for the employer was a desk job which involved using the computer most of the time. Everything claimant was required to do was sedentary. There was a rotating function of the job that required the normal hours of duty for seven days per week, and also coverage from home by phone or laptop until 9:00 pm Monday through Friday, and on weekends during normal business hours. For the weekend portion, the employees receive a shift differential and are entitled to two days in the following week or later. This rotation would occur every six to eight weeks. The supervisor remembers that the claimant was out for an extended period of time after an injury and surgery. She was approved to return to duty but she did not show up when she was supposed to. The supervisor spoke with the claimant and she requested a vacation day. She came back to collect her belongings but never returned to work. The supervisor explained that when an employee returns to work, the medical department determines whether the employee needs restrictions to work and if the job cannot be performed with those restrictions, the employee would need to be accommodated elsewhere in the company. The supervisor noted that when the claimant was released to return to work, she was restricted to sedentary work, which is the kind of work that she normally does, and requires no additional restrictions from her normal job.

On June 14, 2011, the employer's Senior Benefits Specialist testified that he conducted the claimant's exit interview. The benefits specialist explained that the claimant had requested retirement on April 12, 2010, and that he sent the letter dated April 15, 2010, to the claimant regarding the possibility of light duty work (ECF Doc ID #177819465, p. 10). The exit interview was conducted on April 22, 2010, and at that time, the claimant indicated that her health was the reason for her retirement. The benefits specialist explained that when "health" is the reason, he is required to ask certain questions to determine if the claimant is aware of the employer's policy on sick pay and long-term disability, and limited duty, and the claimant responded that she was aware of these policies. He is also required to ask whether the claimant would cancel retirement if the employer would find her a job within her restrictions, and she responded "no." After these questions were asked, the claimant elected to retire effective May 1, 2010. On cross-examination the benefits specialist confirmed that he did not provide anything in writing to the claimant to outline the duties that she would be required to perform in a light duty position. The claimant was pension eligible at the time that she decided to retire, and if she had continued to work, her pension benefits would have only increased marginally. She was entitled to a full pension when she retired because she was at least 55 and had more than 30 years of service.

At the conclusion of testimony at the June 14, 2011, hearing, the record was closed, the parties provided oral summations, and the WCLJ reserved decision.

On June 15, 2011, after the record was closed, the Board received documentation related to the claimant's work search efforts (ECF Doc ID #182086259). There is a copy of the claimant's membership card for Work Force One, an "Employment Search" record that shows the claimant's efforts to look for work at fourteen employers during the period from February 28, 2011, to April 11, 2011, and a report dated March 31, 2010, from the employer's medical office in which the claimant was released to return to work on April 2, 2010, with restrictions in place for 21 days. While the code for the type of restrictions is illegible on the form, a review of the minutes of the hearing held on June 14, 2011, reveals that there was a discussion about this form when it was submitted into evidence. Specifically, it was noted that when the form was previously submitted, no one knew what the codes meant but the additional information now being submitted shows that code "9101" means sedentary work only (ECF Doc ID #182086259, p.22).

In subsequent reports of examinations on June 1, 2011, June 27, 2011, July 18, 2011, August 15, 2011, September 19, 2011, and November 21, 2011, Dr. Kushnerik opined that the claimant was unable to work because she is 70% disabled.

As noted above, in the reserved decision filed on December 8, 2011, the WCLJ found that the claimant's retirement was voluntary. The WCLJ explained that the "claimant might have been able to continue working for the employer, but she chose not to try." The WCLJ further noted that the claimant "didn't want to be told about the opportunity for light duty [and therefore] the employer was forestalled from making a specific offer." The WCLJ further found that the claimant had presented insufficient evidence to show reattachment to the labor market.

LEGAL ANALYSIS

Voluntary Retirement

Whether a claimant has voluntarily withdrawn from the labor market is a factual issue for the Board to resolve (see Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 [2012]). "'An award of compensation is improper if the sole cause for a claimant's loss of earnings is his or her voluntary withdrawal from the labor market' (Matter of Coneys v New York City Dept. of Mental Health, 299 AD2d 602 [2002] [citation omitted]; see Matter of Singletary v Meloon Foundries, 302 AD2d 652 [2003]). Notably, 'evidence that a claimant received medical advice to retire is not essential to establishing that the claimant did not voluntarily withdraw from the labor market' (Matter of Curtis v Dale Pipery Corp., 295 AD2d 836 [2002]; see Matter of Evans v Jewish Home & Hosp., 289 AD2d 795 [2001]). There must, however, 'be some evidence that the "claimant's disability caused or contributed to retirement"' (Matter of Curtis v Dale Pipery Corp., supra at 837, quoting Matter of Camarda v New York Tel., 262 AD2d 816 [1999]; see Matter of Milby v Consolidated Edison, supra at 947)" (Matter of Clohesy v Consolidated Edison Co. of N.Y., 306 AD2d 657 [2003], lv dismissed 100 NY2d 639 [2003]).

Here, the medical evidence in the record at the time of the claimant's decision to retire supports a finding that she was capable of performing sedentary work. Specifically, as of April 1, 2010, Dr. Strauss found the claimant to be mildly disabled and opined that she could return to work on a full-time basis with restrictions of avoiding long periods of standing, bending, and squatting. While Dr. Kushnerik's opinion that the claimant was 70% disabled as of April 5, 2010, is substantially greater than the mild disability found by Dr. Strauss, Dr. Kushnerik's opinion of 70% disability is based, at least in part, on a diagnosis of Reflex Sympathetic Dystrophy, which is not an established condition in this claim. Therefore, Dr. Strauss' opinion of the claimant's disability is more credible than that of Dr. Kushnerik. Further, the claimant was examined by the employer's medical office on March 31, 2010, and was released to return to work as of April 2, 2010, in a sedentary capacity.

There is no evidence in the record to support a finding that the claimant's job as a scheduler was anything other than sedentary. Specifically, the claimant's supervisor testified that the claimant had a desk job which involved using the computer most of the time and that her job was sedentary. The claimant did not offer any testimony to refute her supervisor's testimony that her job was sedentary. She did testify that the nature of her previous job as a scheduler was stressful since she was on call 24 hours once every seven weeks and she was no longer able to function in that capacity. However, her inability to work the on-call requirement of her job once every seven weeks is not one of the work restrictions that are due to her causally related injury.

Therefore, the Full Board finds that the claimant voluntarily retired from the employer when she decided to retire from her sedentary job after she had been released to return to work in a sedentary capacity.

Since a finding of voluntary retirement is supported by the preponderance of the evidence in the record, the issue of whether the employer's offer of light duty employment was a bona fide offer of light duty work is not relevant. At the time the offer was made to the claimant, she had already decided to retire notwithstanding the evidence of her ability to return to her former work. The Full Board finds that the employer was not required to offer the claimant light duty work since the only medical evidence in the record that sets forth any work restrictions demonstrates that her former work was within the restrictions of her causally related disability.

Attachment to the Labor Market

The Court of Appeals in Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 (2012), held that there is no mandatory inference of entitlement to wage-loss benefits, "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. A claimant with a temporary partial disability must look for work within the limits of his or her partial disability or otherwise demonstrate a sufficient attachment to the labor market" (Matter of Robert D. Anderson Co Inc, 2012 NY Wrk Comp G0016823; see generally Zamora, 19 NY3d 186 [2012]).

Here, there is insufficient evidence in the record to support a finding that the claimant was attached to the labor market. Specifically, the claimant testified that she did not look for any work, and only went to Workforce One on three occasions since her retirement in April of 2010. The Full Board finds that this does not constitute a timely, diligent, and persistent search for work and therefore, the claimant is not entitled to awards until such time as she demonstrates a reattachment to the labor market.

Although the claimant also submitted evidence of an employment search on June 15, 2011, that evidence was submitted well after claimant's testimony and after the record was closed, and was not considered by the WCLJ. As such, the Full Board finds that the case should be continued for the WCLJ to consider that, and any additional evidence submitted by the claimant, to determine whether she has reattached to the labor market.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed on December 8, 2011, is AFFIRMED. The case is returned to the hearing calendar to consider the evidence of the claimant's employment search that was received on June 15, 2011. The case is continued.