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Workers' Compensation Board

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Case # G0545275
Date of Accident: 07/28/2011
District Office: NYC
Employer: Allied Barton Security Service
Carrier: Arch Insurance Company
Carrier ID No.: W087381
Carrier Case No.: 65584941490995
Date of Filing of Decision: 01/25/2017
Claimant's Attorney: Jonathan H Poznansky
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on December 20, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed August 10, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant was attached to the labor market.

The Workers' Compensation Law Judge (WCLJ) found the claimant voluntary removed herself from the labor market for the period from October 29, 2015, until December 15, 2015, but was attached to the labor market from December 15, 2015, until February 9, 2016.

The Board Panel majority modified the WCLJ's decision, finding the claimant was not attached to the labor market during any time period, and the majority rescinded awards from December 15, 2015, until February 9, 2016, which was the date of the WCLJ's decision.

The dissenting Board Panel member would have affirmed the WCLJ's decision by finding the claimant made an adequate search for employment for the time period from December 15, 2015, until February 9, 2016.

The claimant filed an application for Mandatory Full Board Review on September 9, 2016.

The carrier filed a rebuttal on September 30, 2016.

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

FACTS

This case was originally established for the back, bilateral shoulders, bilateral wrists, bilateral knees and bilateral hands, and was subsequently amended by Notice of Decision dated November 24, 2014, to include the psychiatric condition of major depressive disorder.

By form C-4.2 (Doctor's Progress Report) dated September 3, 2014, the claimant's physician, Dr. Giovinazzo, reported that the claimant had undergone left rotator cuff surgery one week prior to the examination. Dr. Giovinazzo opined the claimant was 100% temporarily totally disabled.

By C-4.2 dated March 30, 2015, Dr. Giovinazzo reported the claimant had undergone left shoulder arthroscopy, revision of the rotator cuff repair and extensive debridement on March 13, 2015, and opined the claimant was 100% temporarily disabled.

By Notice of Decision dated July 8, 2015, the WCLJ noted the claimant's physician had consistently indicated the claimant was totally disabled, and as the claimant could rely on the opinion, she was not obligated to search for work within her restrictions.

By form C-4.3 (Doctor's Report of MMI/Permanent Impairment) for an examination performed on July 27, 2015, the claimant's physician noted the claimant had undergone left shoulder cuff repair, debridement and biceps tenolysis one year before the examination, reported the claimant had reached maximum medical improvement for the left shoulder, and opined she had a 50% schedule loss of use for the left shoulder.

By C-4.2 dated August 20, 2015, the claimant's physician, Dr. Rowe, indicated the claimant was 75% temporarily partially disabled.

By Notice of Decision dated November 2, 2015, the WCLJ found the claimant had not reached maximum medical improvement as the surgery had been performed only six months prior to the C-4.3. The WCLJ also indicated the claimant's physician reported the claimant had a partial disability, and as such, the WCLJ directed the claimant to submit evidence and testimony of attachment to the labor market at the following hearing.

By C-4.2 dated December 14, 2015, the claimant's physician, Dr. Rowe, opined the claimant was 100% temporarily totally disabled and unable to work because she underwent left shoulder rotator cuff repair on March 13, 2015.

By Notice of Decision dated January 8, 2016, the WCLJ noted the claimant failed to appear for testimony on attachment to the labor market because, as she had advised her attorney, she was expecting to undergo back surgery. The WCLJ indicated there was no medical evidence concerning back surgery in the case file, and continued the case.

By Notice of Workers' Compensation Hearing dated January 20, 2016, the Board scheduled a hearing to be held on February 8, 2016, for the testimony of the claimant concerning attachment to the labor market.

At the hearing held on February 8, 2016, the claimant testified about her search for employment. The claimant testified about completing form C-258 (Record of Job Search) wherein the claimant indicated she applied to five employers between December 15, 2015, and January 19, 2016, but the claimant did not know the name of one employer. The claimant testified she followed up with two of the employers but had not heard anything back from them, and she did not attend Workforce One or any similar type of agency because she "couldn't make it there." The C-258 and resume are not in the case file. The claimant's attorney stated that the claimant's physician found a total disability and the claimant may need spinal surgery.

By Notice of Decision dated February 11, 2016, the WCLJ found the claimant was not attached to the labor market from October 28, 2015, until December 15, 2015, but found as of December 15, 2015, the claimant had met the minimum requirements for an employment search, and made awards for that time period. The WCLJ also noted the claimant's physician had, as of the date of the hearing, indicated the claimant had a total disability, and the claimant was entitled to rely on that opinion.

The carrier filed an application for administrative review, requesting that the WCLJ's decision to find attachment for the time period after December 15, 2015, be rescinded because the claimant's employment search was inadequate as the claimant only applied for five positions from December 15, 2015, until February 9, 2016, and failed to attend Workforce One or another similar agency.

The claimant's attorney filed a rebuttal to the carrier's appeal, arguing that the WCLJ's decision was correct and additionally noting that the WCLJ found the claimant had a total disability as of December 15, 2015, and the claimant was entitled to rely on the medical evidence absent a contrary finding by the Board.

In a report of independent medical examination (IME-4) dated June 24, 2016, for an examination conducted on June 14, 2016, Dr. Weksler concluded that the claimant was not able to work because she was too depressed and anxious. However, Dr. Weksler also noted, "[t]here is a temporary, moderate disability at this time rated at 50%."

LEGAL ANALYSIS

In her application for Mandatory Full Board Review, the claimant argues the Board Panel made an error of fact by failing to list major depressive disorder as an established condition. The claimant notes the carrier's medical consultant, Dr. Weksler, found the claimant was totally disabled and unable to work because of major depressive disorder, and as such, the claimant contends that the WCLJ's decision to award benefits from December 15, 2015, until February 9, 2016, should be reinstated.

In their rebuttal, the carrier maintains that although Dr. Weksler indicates in his report that the claimant is unable to work, Dr. Weksler also indicates that the claimant is 50% temporarily disabled. Moreover, the carrier points out that Dr. Weksler's report is dated over seven months after the WCLJ directed the claimant to produce evidence of attachment to the labor market, and four months after the Board Panel's decision. As such, the carrier asserts Dr. Weksler's opinion is irrelevant to the issue here, and the carrier requests that the Board Panel majority's opinion be sustained.

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 [2012]).

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 [2005]). 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 claimant's physician, Dr. Rowe, indicated on August 20, 2015, that the claimant was temporarily disabled and as a result, the WCLJ directed the claimant to demonstrate attachment to the labor market. The claimant testified that she applied to five employers from December 15, 2015, until February 9, 2016, but did not attend any job location or retraining service. The claimant's employment search was not adequate in light of the requirements in American Axle, which requires the claimant to perform an independent employment search that is timely, diligent and persistent. Contacting five employers in two months, one of whom the claimant did not know the name of the employer, and not showing any other efforts to obtain employment such as attending a job retraining service, is not a timely, diligent, and persistent search.

The claimant also argues that based on Dr. Weksler's report finding the claimant was totally disabled, the WCLJ's decision should be reinstated. However, here the Board Panel rescinded the awards made by the WCLJ for the time period from December 15, 2015, until February 9, 2016, while Dr. Weksler's report is dated June 24, 2016, and is not applicable to the time period under consideration. Moreover, Dr. Weksler's report was contradictory because although he concluded the claimant was not able to work, Dr. Weksler also indicated the claimant had a 50% temporary disability.

Therefore, the Full Board finds the preponderance of the evidence in the record supports the finding that the claimant was not sufficiently attached to the labor market from December 15, 2015, until February 9, 2016.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on February 11, 2016, is MODIFIED to rescind the finding that the claimant was attached to the labor market from December 15, 2015, until February 9, 2016. The decision is affirmed in all other respects. No further action is planned by the Board at this time.