The Full Board, at its meeting on October 22, 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.
The issue presented for Mandatory Full Board Review is whether the claimant maintained an attachment to the labor market.
In a decision filed on April 19, 2011, the Workers' Compensation Law Judge (WCLJ) made awards from January 24, 2005, to April 14, 2011, and continuing, at the permanent partial disability rate of $82.82 per week. The WCLJ also found that the "carrier's defense of voluntary removal from the labor market was overruled."
The Board Panel majority found that the claimant involuntarily withdrew from her previous employment, and subsequently made a good faith effort to find work consistent with the type of work she had done all her life, and therefore was entitled to awards for causally related loss of earnings.
The dissenting Board Panel member found that the claimant did not evidence a sufficient attachment to the labor market.
On October 9, 2012, the self-insured employer filed an application for Mandatory Full Board Review, arguing that consistent with the dissenting panelist's opinion, the claimant failed to show reasonable efforts to find alternative work consistent with her physical limitations so that awards made by the WCLJ in the underlying decision filed on April 19, 2011, should be rescinded and a finding of no compensable lost time should be made from January 24, 2005, to date.
On October 25, 2012, the claimant filed a rebuttal asserting that the majority decision is correct in its analysis of both the facts and the law, and should not be disturbed, as the record supports that the claimant's separation from her employment was involuntary, and as the claimant conducted a personal job search to the best of her abilities. The claimant also notes that she lives in Alabama and is not eligible for retraining services through ACCESS-VR or One Stop Centers. The claimant further notes that no development of the record has been had or requested by the self-insured employer on whether there are complementary services in Alabama.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, then a 46 year old overnight stockperson at Walmart, sustained right ankle and right knee injuries in a work-related accident on November 8, 1997. The claim was established and the claimant's average weekly wage was set at $248.45. In a decision filed on January 11, 2002, the claimant was classified with a permanent partial disability and continuing awards were directed at the moderate partial rate of $82.82 per week.
The claimant relocated to Alabama in 2007.
After two questionnaires inquiring as to the status of the claimant's search for work were sent to the claimant without a response, the self-insured employer submitted an RFA-2 application on February 7, 2011, seeking a hearing on the issue of attachment to the labor market. Pursuant to the Workers' Compensation Board's internal policies, because this case was previously closed after classification of the claimant with a permanent partial disability, the self-insured employer's RFA-2 should have been addressed by a Board Panel decision. However, the case was reopened based on the RFA-2 without referring the matter to a Board Panel. While the case should have been referred to a Board Panel to address the RFA-2, and based on precedent, the Board Panel would have likely denied reopening, the case was nonetheless reopened and fully developed on the issue of labor market attachment without objection by the parties.
The case was reopened and at a hearing held on April 14, 2011, the claimant testified by telephone that at the time she was classified with a permanent partial disability, her doctor told her to be careful about how she walked and if there were any problems to give him a call. She stated that she had difficulty standing for more than ten minutes and walking for more than a short distance. She does not use any assistive devices to ambulate but is in pain ninety percent of the time. The claimant did not finish high school and never obtained her GED. The claimant also testified that she believed she contacted VESID (now ACCES-VR) in 1998, and that she applied for computer training in 2002, and was told it would cost her several thousand dollars. In the weeks leading up to the hearing, the claimant visited places like Office Depot, McDonald's, and Big Lots inquiring about work. The claimant also indicated that she contacted various other stores (a liquor store, clothing store, fabric store, and tobacco store) for employment as a retail clerk/customer service representative, as well as Shoney's Restaurant as a hostess. The claimant provided the names of the contacts for each place of business to which she applied. The businesses to which she applied either were not hiring at the time or there was not a position suitable for her. Therefore, she was told that her application would be kept on file, and if anything opened up she may be contacted. The claimant also checked the local newspaper but only found ads for positions or which she was not qualified. The claimant also inquired with other business that required on-line applications, which she is not capable of completing. Her past employment included work as a nurse's aide, and working for H&R Block, Pizza Hut and Burger King. At the time of the hearing, she was working on an application to Pizza Hut in her area. The claimant returned to work at Walmart for one week after her injury but because she was required to ambulate extensively and be on her feet for long periods of time, she stopped working. At the conclusion of the hearing, the WCLJ found that the claimant had maintained an attachment to the labor market, as her separation from her employment was involuntary, and the self-insured employer had not overcome the presumption that the subsequent reduction in earnings was causally related.
By a decision filed on April 19, 2011, the WCLJ made awards from January 24, 2005, to April 14, 2011, and continuing, at the permanent partial disability rate of $82.82 per week. The WCLJ also found that the "carrier's defense of voluntary removal from the labor market was overruled."
In Matter of Zamora v New York Neurologic Assoc. (19 NY3d 186 ),
[A] central question for the Board to resolve, before awarding wage replacement benefits in a nonschedule permanent partial disability case, is "whether a claimant has maintained a sufficient attachment to the labor market" (Burns v Varriale, 9 NY3d 207, 216, 879 NE2d 140, 849 NYS2d 1 ; see Matter of Jordan v Decorative Co., 230 NY 522, 526-527, 130 NE 634 ). By 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. "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).
Attachment to the labor market can be demonstrated by credible documentary evidence showing that claimant is actively seeking work within the restrictions through an independent job search that is timely, diligent, and persistent; or 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; or 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; or is actively participating in a job-retraining program; or is 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.).
The claimant testified that while she still lived in New York, she sought retraining in 1998, but was unsuccessful, and applied for computer training in 2002, but did not initiate same as it was cost prohibitive. The claimant's testimony with respect to her efforts to obtain retraining was vague and untimely as those efforts occurred almost ten years prior to the date of hearing. Her excuse as to why she has not since sought retraining (because she cannot afford it) is insufficient. As to her independent job search, while the claimant testified to a list of employers at which she sought employment in person, there is no documentation in the Board file to corroborate the claimant's testimony. In addition, the claimant did not provide the dates on which she applied, nor did she supply addresses or phone numbers of the potential employers, in her testimony. Moreover, the claimant's job search efforts were made only weeks leading up to the hearing.
Based upon a review of the record and the preponderance of the evidence, the Full Board finds that the claimant's efforts do not demonstrate a timely, diligent, and persistent independent job search. In addition, the claimant has not actively pursued participation with a job service, or sought vocational rehabilitation. Accordingly, awards after April 14, 2011 (the date of the hearing), are rescinded.
ACCORDINGLY, the WCLJ decision filed on April 19, 2011, is MODIFIED to find that the claimant failed to show her attachment to the labor market sufficient for awards to continue after April 14, 2011; the awards for the period from January 25, 2005, to April 14, 2011, are otherwise affirmed. No further action is planned by the Board at this time.