The Full Board, at its meeting held on September 17, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on January 11, 2013.
The issue presented for Mandatory Full Board Review is whether the claimant's loss of earnings is causally related to her compensable injuries.
The Workers' Compensation Law Judge (WCLJ) made awards for the period from August 17, 2011, to October 7, 2011, and continuing, at the tentative rate of $200.00 per week. An amended decision was filed on October 24, 2011, solely to note the carrier's exception to the findings made.
The Board Panel majority modified the WCLJ's amended decision to rescind awards subsequent to October 6, 2011, finding that the claimant did not demonstrate an attachment to the labor market sufficient to justify continued compensation benefits.
The dissenting Board Panel member would have affirmed the WCLJ's decision and found that "[i]n light of the claimant's severe medical restrictions . . . the claimant's work search efforts [were conducted] in good faith, and [her] loss of earnings is causally related to her established disability."
Claimant filed an application for Mandatory Full Board Review on February 1, 2013, arguing that the claimant's loss of earnings is causally related to her compensable injuries. The claimant argues that the dissenting Board Panel member properly found that she is attached to the labor market in accordance with her severe disability.
In a rebuttal filed with the Board on March 1, 2013, the carrier requests that the decision of the Board Panel majority be affirmed. The carrier argues that the Board Panel majority was correct to find that the claimant's loss of earnings was not causally related to the injuries that occurred at work.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On April 21, 2009, claimant, then a 39 year old director of marketing, was injured in a work-related motor vehicle accident. This claim is established for injuries to the right leg, right hip, right ankle and left forearm that resulted from an accident on April 21, 2009. Awards were made at various rates for various periods of lost time on dates between April 22, 2009, and April 14, 2011.
Dr. Joseph, the claimant's treating podiatrist, submitted a C-4.2 report of an examination on June 23, 2011, and opined that the claimant has a 30% temporary impairment. In the "return to work" section of the form, Dr. Joseph reported that the claimant cannot return to work because of pain, that her ability to return to work without limitations is pending, and that she cannot perform any of the listed work limitations.
In a decision filed on August 23, 2011, the WCLJ found no medical evidence for the period from April 14, 2011, to June 23, 2011; made awards for the period from June 23, 2011, to August 17, 2011, and continuing, at the tentative rate of $200.00 per week; noted that the claimant asserts a total industrial disability; and continued the case for "the narrative of the claimant."
The record contains another report from Dr. Joseph of an examination on September 28, 2011, in which Dr. Joseph opined that the claimant has a 70% temporary impairment. In the "return to work" section of the form, Dr. Joseph continued to report that the claimant cannot return to work because of pain, and that her ability to return to work without limitations is pending. However, nothing is written in the section provided for work limitations.
At the hearing held on October 6, 2011, the claimant testified that she worked for the Rizzo Group on and off for the last 20 years, the last 7 as a manager. She is not working at this time. She began seeking employment a month and a half ago in sales or PR marketing. She looked for work in the New York Times every week and she also asked friends and family. She faxed her resume to Metro Code, ABC Carpet, USBG, and Code Green. These places were advertising for sales positions. She had two interviews; one interview was with Metro Code and she thinks that the other was with USBG. She faxed her resume to a couple of other places but never heard back from anybody. She did not make a log of these additional submissions because she did not know she had to. She sent a partial listing of where she looked for work to her attorney. She last sent out a resume or contacted a possible employer two and a half weeks ago. She also looked for work by checking Monster.com every couple of days. She looked at the Workforce on-line searches but they did not have anything that was relevant to her field. She has not been to a Workforce office and has not registered with Workforce One. She has not registered with an employment agency or a head hunter. She has not attended school or a class to retrain in another field. She has not attended job fairs. Her doctor said that she should not return to work. She was advised not to stand or sit for an extended period of time.
The record contains an unsigned and undated summary of the claimant's work search including resume submissions at ABC Carpet and Stop Pest (no date indicated), job interviews at Code Green and Metro Code Inspections (no date indicated), and a September 5, 2011, rejection letter from Metro Code Architecture (ECF Doc ID #187189958, pp. 2-3).
After the claimant's testimony, the parties provided oral summations, and the WCLJ made awards for the period from August 17, 2011, to October 7, 2011, and continuing, at a tentative rate of $200.00 per week. The WCLJ noted the claimant's testimony that she went on a job interview and was declined the job. The WCLJ further noted that the most recent medical evidence was a report of an examination on September 28, 2011. Finally, the WCLJ noted that while there is limited evidence of the claimant's work search, she sent resumes to four employers; she looked on Monster every day; she went to Workforce One; and her work search was somewhat successful since she has gotten job interviews. The WCLJ explained that all of this "shows she is making an effort to look for work and is making genuine efforts to remain attached to the labor market." The carrier noted its exception on the record.
The WCLJ's findings were set forth in a decision filed on October 12, 2011, and in an amended decision filed on October 24, 2011, the WCLJ revised the previously filed decision solely to note the carrier's exception to the findings. The carrier filed an application for administrative review.
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 Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 ). A partially disabled person need only seek employment within his or her medical restrictions (Matter of Sanchez v Consolidated Edison Co. of N.Y., Inc., 40 AD3d 1153 ).
Here, at the time of the claimant's testimony, the most current medical evidence in the record was from Dr. Joseph. Although the claimant testified that she was told by her doctors that she could not work, the reports from Dr. Joseph indicate that she has a partial disability, and she also conceded during her testimony that her doctors advised her not to stand or sit for an extended period of time. Therefore, although the reports of Dr. Joseph do not specify the work limitations that apply to the claimant, it is clear that it was her understanding that her doctors recommended work that did not require prolonged standing or sitting.
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).
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 Zamora, 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.).
Here, the record contains documentation of the claimant's contact with four employers. She testified that she contacted these four employers over a 28 day period: she began her search for work a month and a half prior to the hearing on October 6, 2011 (approximately August 22, 2011), but she had not sent out a resume or contacted any employers for two and a half weeks prior to the hearing (approximately September 19, 2011). While the claimant testified that she contacted other employers about work, she conceded that she had no documentation of these contacts, and she was unable to recall any specific information about these employers. The claimant testified that she looks for work by looking in the newspaper once a week and checking on Monster.com every few days. However, she also conceded that she has made no other efforts to look for work by participating in a job-location service, or by participating in vocational rehabilitation or a job-retraining program, or by attending school full-time.
Therefore, the Full Board finds that the claimant did not demonstrate sufficient attachment to the labor market, based on the criteria set forth in American Axle.
ACCORDINGLY, the WCLJ decision filed on October 12, 2011, as amended by the decision filed on October 24, 2011, is MODIFIED to find that the claimant did not demonstrate an attachment to the labor market sufficient to justify continued compensation benefits; to rescind awards for the period subsequent to October 6, 2011; and to reduce the amount of the claimant's attorney's fee to $30.00. No further action is planned by the Board at this time.