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Workers' Compensation Board

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Case # G0967011
Date of Accident: 07/24/2013
District Office: NYC
Employer: St. Josephs Hospital
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 66555335
Date of Filing of Decision: 01/25/2017
Claimant's Attorney: Pasternack Tilker Ziegler Walsh Stanton & Romano LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on December 20, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on August 19, 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 maintained an attachment to the labor market.

The Board Panel majority found the claimant failed to demonstrate a sufficient attachment to the labor market, and rescinded the WCLJ's direction to continue payments.

The dissenting Board Panel member would affirm the WCLJ's decision.

The claimant filed an application for Mandatory Full Board Review on September 19, 2016, arguing his efforts at obtaining employment were sufficient to show attachment to the labor market.

In a rebuttal filed on October 12, 2016, the carrier argues that the opinion of the Board Panel majority should be affirmed.

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

FACTS

This claim is established for a work-related back injury which claimant, a maintenance mechanic, sustained on July 24, 2013, while lifting a refrigerator.

By a decision filed October 16, 2015, the WCLJ made awards at the partial disability rate of $382.45 per week from April 3, 2015, to October 14, 2015, directed the carrier to continue payments at the partial disability rate of $330.00 per week, and continued the case to December 8, 2015, for the claimant's testimony on attachment to the labor market and to consider permanency.

At the hearing held on December 8, 2015, the claimant testified that he spoke to his physician concerning his work restrictions, created his resume, went to Workforce One on three or four occasions, and searched for work online three or four times per week using sites such as Indeed, Craig's List and SILive.

On cross-examination, the claimant testified he began searching for employment in August 2015 by reaching out to people, and he next searched for employment on September 20 and October 8, and also on some days in November. He was looking for maintenance and mechanical work. He was not proficient in Microsoft and he used to work in security. The claimant admitted he could no longer work as a handyman, or as a custodian, or in maintenance on a full time basis. The claimant also admitted that he would be unable to work at any of the positions for which he applied because his physician limited him to light duty, sedentary part-time work, and there were not any positions available within his restrictions. The claimant testified he did not think he was capable of performing any work. The claimant confirmed he did not have any evidence of the positions he applied for such as confirmatory emails or employment applications, nor did he have any proof of attendance at Workforce One other than his identification card.

On redirect, the claimant testified he was unsure when he signed up for Workforce One, he had upgraded his resume and he had searched for light duty positions, but no such positions were available.

At the conclusion of the hearing, the WCLJ found the claimant was sufficiently attached to the labor market because he testified that he attended Workforce One four times, and searched for employment online, and made awards from October 14, 2015, forward at the rate of $330.00 per week. These findings and awards are reflected in a decision filed on December 14, 2015.

The carrier filed an application for administrative review contending that the claimant failed to make a genuine, persistent and good faith effort searching for employment. The carrier highlighted the claimant's testimony that he applied for employment as a mechanic or custodian, but admitted he was incapable of working at either of those positions because his physician restricted him to light duty, sedentary work. The carrier also argued the claimant's search was inadequate because the claimant only attended Workforce One on two occasions just prior to the hearing. The carrier further asserted the claimant's contention that there were no positions available for light duty sedentary work lacked credibility and argued the claimant's employment search was designed to fail.

In rebuttal, the claimant maintained he provided sufficient evidence of attachment to the labor market by speaking to his physician, creating a resume, actively participating in Workforce One, and searching online for employment three to four times per week.

LEGAL ANALYSIS

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 the claimant is actively seeking work, within medical restrictions, through an independent job search that is timely, diligent, and persistent; 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; 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; 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).

For online employment searches, the claimant should provide a confirmation email or reference number if that information is available. "If such documentation is not available, the claimant must, at a minimum, document the date he or she made the online application, the position applied for, and the name of the site they used" (Suffolk County Health Services, 2016 NY Wrk Comp G0713095).

Here, the claimant's employment search was not active, diligent or persistent. The claimant testified he began searching for work in August, and searched for work for one day in September, one day in October, and some days in November. Searching for work one day per month does not meet the requirements set forth in American Axle.

Furthermore, the claimant did not provide any documentation concerning his online work search. The claimant testified that he did not have any emails from potential employers confirming that he sought employment with them, nor did he provide any documentation showing the potential employers, the date he applied for positions and the positions applied for. The claimant also failed to provide any documentation from Workforce One confirming his attendance other than his identification card.

Moreover, the claimant is required to search for work within his restrictions and he did not. The claimant admitted that he did not apply for any positions within the work restrictions provided by his physician, and he would not actually be able to work at any of the positions for which he applied.

Therefore, the Full Board finds that the preponderance of the evidence in the records supports a finding that the claimant was not attached to the labor market.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on December 14, 2015, is MODIFIED to find the claimant is not attached to the labor market. No further action is planned by the Board at this time.