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Workers' Compensation Board

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Case # G0092203
Date of Accident: 11/30/2008
District Office: NYC
Employer: City of New York Lincoln Hospital
Carrier: Health & Hospitals Corp. CNY
Carrier ID No.: W843502
Carrier Case No.: VCC 1-308 1-207
Date of Filing of Decision: 09/06/2016
Claimant's Attorney: Klee, Woolf, Goldman & Filpi, LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on July 19, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed October 8, 2015, which was amended on October 26, 2015.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant has demonstrated a sufficient attachment to the labor market subsequent to January 20, 2014.

The Workers' Compensation Law Judge (WCLJ) found that claimant had stopped working for reasons other than his disability, had not demonstrated sufficient attachment to the labor market, and therefore made no awards.

The Board Panel majority modified the WCLJ's decision to find that the claimant reattached to the labor market on January 20, 2014.

The dissenting Board Panel member would find that the claimant did not reattach to the labor market and is not entitled to awards as his work search documentation did not meet the minimum requirements of Matter of American Axle, 2010 NY Wrk Comp 80303659.

The self-insured employer (SIE) filed an application for Mandatory Full Board Review on November 6, 2015.

Claimant did not file a timely rebuttal.

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

FACTS

This case is established for work-related injuries to the back and left shoulder, as well as for major depression, based on an accident that occurred on November 30, 2008, while the claimant was employed by the City of New York at Lincoln Medical Center as a housekeeper.

In a decision filed on January 16, 2014, the claimant was found to have a 12% schedule loss of use (SLU) of the left arm and that he was entitled to an additional 0.4 weeks due to a protracted healing period.

An RFA-1LC was filed on April 23, 2014, indicating that the claimant submitted prima facie medical evidence for major depressive disorder. The claimant requested a hearing.

In a decision filed on June 12, 2014, the carrier was directed to submit an Independent Medical Examination (IME) on the issue of causal relationship regarding major depressive disorder. The WCLJ found the March 13, 2014, report from Dr. Dunkerly to constitute prima facie medical evidence.

At the hearing held on September 4, 2014, the WCLJ asked the carrier's attorney if he was ready to pursue the issue of labor market attachment. The WCLJ indicated a change of condition report had to be filed as the case was previously closed on an SLU and the claimant's attorney was raising a change of condition.

The claimant then testified that he is not currently working, that he returned to work after sustaining his work-related injury in 2008, but was out of work beginning in 2011. At that time, he began to collect unemployment benefits. He began to search for work when he stopped working in 2011. He has to look for work in the housekeeping field as that is all he had done his entire life. His is not able to do the work that he used to do, so he is trying to find lighter duty housekeeping work. Claimant testified that he has worked in housekeeping for 23 years and had not worked any other jobs. The claimant has an eighth grade education, no GED, and is illiterate. The claimant gets assistance from his sister who helps him search the internet for work, schedule appointments with potential employers, and maintain his employment log. The claimant's employment log begins on January 20, 2014. He has no records before that date. The claimant received assistance from a former girlfriend with travel to various appointments with prospective employers. Often the claimant will be asked to submit an application for employment online, but he explained he does not have an email address and therefore tries to convince the employer to hire him based on his experience. The claimant has not filled out any applications and has not received any call backs from any of the employers.

On cross-examination, the claimant testified that he was out of work for a period of two years after the accident, and then returned to work in a different position for the employer, working in the loading dock. He stopped working in 2011. He had difficulty performing this task because of his back and lasted only eight months. The claimant conceded that he was terminated from this employment due to problems with his manager. The employment log was completed by the claimant and his sister, with the sister creating the initial entry and the claimant finishing it with notes added after the contact with the employer was complete. The claimant does not have a resume, although he did ask his sister to create one for him. When asked if he had registered with Work Force 1, the claimant responded that he had never heard of that.

An eight-page job search log was filed with the Board on September 30, 2014, and indicates that the claimant applied for a total of 55 jobs between January 20, 2014, and September 3, 2014. The claimant's log lists potential employers and the dates of contact. Most of the employers are hospitals. The employer's name, address and phone number are listed. A contact at the employer was provided for 29 of the 55 potential employers. There are notes next to some of the employers indicating that a resume must be submitted online. There is no note on the list as to whether an application was taken, or what the response was from any of the potential employers.

In a decision filed September 9, 2014, the WCLJ found that claimant had stopped working for reasons other than his disability, had not demonstrated sufficient attachment to the labor market, and therefore made no awards.

LEGAL ANALYSIS

Reattachment 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).

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.).

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 Matter of Zamora v New York Neurologic Assoc., 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.).

The Full Board finds that the claimant reattached to the labor market as of January 20, 2014, by making a timely, diligent and persistent independent job search consistent with the requirements set forth in Matter of American Axle. The claimant elected to demonstrate his attachment to the labor market on and after January 20, 2014, by submitting documentary evidence showing that he has engaged in an in-person, independent job search. The claimant's job search log itself demonstrates a timely, diligent and persistent effort on the claimant's part to secure employment on 55 occasions over an eight month period in 2014. The job search log in all instances contains the date of the contact, and the name, address and telephone number of the employer contacted. The name of a person contacted is listed in more than half of the log entries, and in some instances, the response of the potential employer is provided. The claimant testified that he sought light duty housekeeping employment with all of these employers, who are primarily hospitals, as housekeeping was all he did for the past 23 years, and that he has not received call backs from any of the employers he contacted.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed September 9, 2014, is MODIFIED in order to find that the claimant has demonstrated a sufficient attachment to the labor market subsequent to January 20, 2014. The decision is AFFIRMED in all other respects. No further action is planned by the Board at this time.