The Full Board, at its meeting on September 17, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on October 1, 2012.
The issue presented for Mandatory Full Board Review is whether the claimant's reduced earnings are causally related to her moderate partial disability.
The Workers' Compensation Law Judge (WCLJ) found the claimant's reduced earnings to be causally related to her disability and awarded the claimant reduced earnings benefits.
The Board Panel majority affirmed the decision of the WCLJ, finding that the claimant's causally related disability contributed to her decision to retire; that the job duties of her part-time position are less physically demanding than those of her former full-time position; and that the claimant did not voluntarily limit her earnings.
The dissenting Board Panel member found that the evidence in the record supports the conclusion that the claimant voluntarily limited her earnings by leaving her full-time employment in connection with a retirement incentive package, and then returning to work for that same employer in a part-time capacity.
On October 31, 2012, the self-insured employed (SIE) filed an application for Mandatory Full Board Review, arguing that the claimant voluntarily withdrew from the labor market when she accepted a retirement incentive offered by her former employer, and that she intentionally limited her earnings when she accepted a similar part-time position with the same employer.
On November 16, 2012, the claimant filed a rebuttal, arguing that she did not voluntarily remove herself from the labor market when she retired, and that an inquiry as to whether the claimant voluntarily limited her earnings is not permissible as a matter of law.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This case has been established for work-related injuries to the claimant's neck, right shoulder and arm, resulting from the repetitive act of reaching over multiple times a day to time-stamp court documents in the course of her employment as a county clerk administrator. The date of injury was determined to be August 7, 2008.
Claimant lost time from work following shoulder surgery on August 7, 2008. She returned to work following her surgery on November 2, 2009, but again stopped working on or about July 16, 2010. In a letter to her employer dated July 29, 2010, claimant wrote:
I...hereby submit my application for early retirement from my employment with the County of Suffolk Clerk's Office. It had been my intention to continue working indefinitely. Unfortunately, however, I sustained serious neck, back and shoulder injuries in two separate accidents on 2/4/08 and 8/7/08. I have already undergone shoulder surgery and will now need spinal surgery. These injuries and the resulting disability will be permanent and prevent me from engaging in my usual and customary job duties at the Suffolk County Clerk's Office. Therefore, regrettably, I have no alternative but to retire.
In a report dated October 18, 2010, claimant's treating physician, Dr. Raanan, wrote:
[Claimant] has a moderate impairment as a result of her cervical disc herniation compounded by her limited right shoulder range of motion from prior surgery. In addition she requires p.r.n. usage of medications that include Flexeril and Vicodin that affect her ability to concentrate and also cause sedation. Therefore, I advised for her to remain off of work and the patient informs me that she has retired and I believe that the absence of the daily rigors from commuting and clerical duties will provide her the best change of long-term symptom maintenance using a non-surgical approach.
A deposition was taken of claimant's treating chiropractor, Dr. Romaine, on November 29, 2010. According to Dr. Romaine, she saw the claimant on multiple occasions between January 13, 2009, and November 27, 2010. Dr. Romaine testified that the claimant informed her that she was going to retire from her job during an examination on July 20, 2010. The doctor conceded that she had not seen the patient much prior to her decision to retire, but that the claimant had begun seeing her more regularly after July 20, 2010. Dr. Romaine testified that the claimant's complaints of pain increased on and after July 20, 2010. On cross-examination, Dr. Romaine conceded that the claimant's range of motion had improved between January 13, 2009, and July 20, 2010. On August 12, 2010, Dr. Romaine recommended that the claimant not return to work based on discussions with the claimant; however, Dr. Romaine did not provide the claimant with any specific restrictions with respect to her activities.
Dr. Raanan was deposed on January 5, 2011. According to Dr. Raanan, he saw the claimant on multiple occasions between May 4, 2010, and October 18, 2010, and during this time the claimant's condition was similar at the time of each exam. However, while the claimant's condition did not appear to change during this time period, the claimant complained of worsening symptoms during an exam on July 16, 2010. Dr. Raanan testified that he advised the claimant to take 2 weeks off from work. When asked if he had ever discussed retirement with the claimant, the doctor responded that he did not have any documentation to suggest that he ever made such a recommendation. On cross-examination, Dr. Raanan conceded that he never provided the claimant with any specific restrictions with respect to her activities, and that he merely advised the claimant not to engage in any activities that aggravate her symptoms.
At a hearing on May 12, 2011, the claimant testified that she had engaged in a work search to find employment within her physical limitations by signing up for WorkForce through the Department of Labor, and by preparing and submitting a resume to employers referred to her by WorkForce. The claimant testified that she submitted resumes to T.J. Maxx and the Teacher's Federal Credit Union. The claimant further testified that she completed the paperwork for VESID, and went to the One-Stop career center on March 21, 2011. The claimant also testified that her former boss contacted her to inform her that they were trying to open up a part-time, temporary position. The claimant testified that she was hoping to find out about the position by June 1, 2011. On cross-examination, the claimant conceded that she never followed-up with any of the prospective employers after submitting her resume. Claimant also conceded that she was having difficulty finding a job because she doesn't have a degree. The WCLJ continued the case for the claimant to report on work status.
At a hearing on July 1, 2011, the claimant testified that she had accepted a part-time position with her former employer. The claimant further testified that she would be working in Archives and that her duties would entail: answering the telephone; setting up place cards to be inserted in place of a file or box that has been removed from the warehouse; and updating the place cards when files are returned to reflect the date of return. The claimant testified that prior to her retirement she was an administrator, and that her duties entailed preparing the clerk's budget, preparing the annual report, and serving as a hearing officer for disciplinary hearings. The claimant testified that her job as an administrator "probably" required more physical activity than her new job in Archives "because I was around a lot more in terms of going to the departments from my office and what not more physical activities" (Hearing Minutes, 7/1/11, pg. 4). Claimant further testified that she cannot lift or carry things and that in her prior capacity as an administrator; someone would have to transports things, such as files and receipts, to and from her office. The claimant testified that her new position in Archives does not require her to lift files.
At the conclusion of the hearing, the WCLJ modified prior findings; found that there was no compensable lost time from January 15, 2010, to July 19, 2010; awarded compensation from July 19, 2010, to August 21, 2010, at a rate of $500.00 per week, subject to employer reimbursement; awarded compensation from August 21, 2010, to June 6, 2011, at a temporary partial disability rate of $500.00 per week; awarded compensation from June 6, 2011, to July 2, 2011, at a reduced earnings rate of $550.00 per week; and directed the self-insured employer (SIE) to continue payments at the reduced earnings rate of $550.00 per week.
"It is well settled that 'a reduced earnings award may be denied where the reduction in earning capacity results from age, economic conditions or other factors unrelated to the disability' (Matter of La Pietra v County of Suffolk, 294 AD2d 794; see Matter of Walby v Volt Information Science, 292 AD2d 740). Although the absence of medical evidence is not determinative of such an award (see Matter of Evans v Jewish Home & Hosp., 289 AD2d 795), 'where ... the evidence establishes that claimant's loss of employment was due to ... conditions unrelated to the disability, claimant bears the burden of demonstrating that limitations due to the disability were a cause of the subsequent inability to obtain [full-time] employment' (Matter of Ennist v Texaco, 280 AD2d 773; see Matter of Holman v Hyde Park Nursing Home, 268 AD2d 705)" (Matter of Turetzky-Santaniello v Vassar Bros. Hosp., 302 AD2d 706 ).
In the present case, the record reflects that claimant's condition became more severe, causing her to stop working in July 2011, and that she ultimately retired, at least in part, due to the exacerbation of her work-related disability. Moreover, the record reflects that subsequent to her retirement, claimant actively sought, and ultimately obtained, employment consistent with her partial disability, with her prior employer. Claimant testified that the duties of her part-time position were less strenuous than those required for her prior position, and the employer has not introduced any evidence to contradict that assertion.
Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant's reduced earnings are causally related to her moderate partial disability.
ACCORDINGLY, the WCLJ decision filed on July 7, 2011, is AFFIRMED. No further action is planned by the Board at this time.