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Workers' Compensation Board

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Case # G0491426
Date of Accident: 10/19/2011
District Office: Syracuse
Employer: Jabez Construction LLC
Carrier: Amguard Insurance Company
Carrier ID No.: W036669
Carrier Case No.: JAWC228560001
Date of Filing of Decision: 09/06/2016
Claimant's Attorney: Zimmerman Law Office
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 July 31, 2015.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether the claimant was entitled to continuing benefits after January 26, 2014; and
  2. whether the claimant has remained attached to the labor market.

In a notice of decision filed on May 22, 2014, the Workers' Compensation Law Judge (WCLJ) made awards through the date of the hearing, and directed continuing payments without prejudice. In a notice of decision filed June 30, 2014, the WCLJ found, among other things, that the claimant had maintained an attachment to the labor market, made awards through the date of the hearing, and directed continuing payments.

The Board Panel majority affirmed the WCLJ's decisions.

The dissenting Board Panel member would affirm the WCLJ's decision filed on May 22, 2014, but would reverse the June 30, 2014, decision and suspend benefits as of June 25, 2014, because claimant failed to adequately show labor market attachment.

The carrier filed an application for Mandatory Full Board Review on August 26, 2015.

The claimant filed a rebuttal on August 28, 2015.

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

FACTS

This case is established for a right foot injury sustained by the claimant, a construction worker, when he fell several feet from a ladder while installing sheetrock in the course of his employment on October 19, 2011. The medical records demonstrate that the claimant sustained a fracture, has required several different boots and braces, requires a cane or walking stick for mobility, and is a surgical candidate. The claimant has received continuing benefits at varying rates.

Per a November 12, 2013, medical report, claimant's treating physician, Dr. Davis, assessed the claimant with a marked 75% disability. At a December 9, 2013, hearing, the claimant's benefits were updated and directed to continue at a partial disability rate. The carrier raised the issue of labor market attachment, and the WCLJ directed the claimant to produce evidence of job search efforts within 45 days of the decision (see EC-23 filed on December 12, 2013).

On December 19, 2013, the claimant was examined by Dr. Berard at the carrier's request. Dr. Berard stated in his IME-4 report that "the prognosis for the return to the pre-injury level of function is poor regarding the severity of the calcaneus fracture." Dr. Berard further found that the claimant is a surgical candidate and "highly limited with ambulation aid that he is using all the time. He has slightly more weight bearing on his lower extremities than the last time, but the only work capacity I can see would be sedentary sitting position." The claimant was assessed with a 75% marked degree of disability.

The claimant did not produce evidence of a work search.

Both the claimant's and the carrier's attorneys sought a hearing. The carrier wished to suspend benefits due to a lack of up-to-date medical evidence. The requested hearing was denied because up-to-date medical evidence had been received. The claimant asked to have the average weekly wage corrected, as it had been set tentatively based upon incomplete payroll information.

A hearing was then scheduled at the claimant's request. The notice indicated that the issues to be addressed included "Question of period and extent of disability. Question of rate of compensation and/or average weekly wage. At request of party."

At a May 19, 2014, hearing, the claimant's attorney presented arguments concerning the claimant's average weekly wage. The carrier then objected to continuing awards based upon the claimant's failure to comply with the prior direction that he produce evidence of a work search. The WCLJ noted that the hearing had not been scheduled to address that issue, and that the carrier had not raised that issue in its hearing request. The WCLJ acknowledged the carrier's request to address labor market attachment by continuing the case for the claimant's testimony, but made awards at the temporary partial rate of $192.23 per week from December 10, 2013, to May 20, 2014, and directed the carrier to continue paying benefits at that rate, without prejudice. The findings are contained in a WCLJ decision filed on May 22, 2014.

In an application for administrative review of the WCLJ's decision filed on May 22, 2014, the carrier argued that benefits should have been suspended as of January 26, 2014 (45 days from the WCLJ's December 12, 2013, decision), due to the claimant's failure to produce evidence of a work search as previously directed.

On June 10, 2014, the claimant was examined by Dr. Baker at the carrier's request. In his IME-4 report, Dr. Baker assessed a marked disability, and stated that "[r]eturn to work would require restrictions, which would include alternate sitting and standing every thirty minutes, the requirement that he be able to use a cane or walking device, no climbing, no bending and weight lifting limit of 15 pounds." He agreed that the claimant is a surgical candidate.

At a June 25, 2014, hearing, the claimant testified that his education ended with tenth grade and he does not have a GED. He had not worked since the date of accident, but had recently commenced a work search. In May of 2014, he submitted two applications online, but then had to stop online searching because he lost his internet service. He then searched newspapers and went out on foot to meet prospective employers in person. He provided four letters from prospective employers demonstrating that he had met with them, and that they might have hired him if he had been physically capable of performing the employment. He also provided Board form C-258 (Claimant's Record of Job Search Efforts/Contacts), wherein he included some additional work search information. The C-258 indicates that he contacted five specific prospective employer's concerning positions as a landscaper, cleaner (supervising), laborer and mover. He also indicated that he submitted his resume online to Indeed.com and Syracusejobs.com. He had not gone to a One Stop Career Center, but had called ACCES-VR for assistance three weeks prior to the hearing. He has not followed up with them because "they only help full disability for disabled and being that I'm only 75 percent disabled" (Hearing Transcript, 6/25/14, pg. 18). The claimant admitted that the jobs that he found to apply for were outside of his physical restrictions.

At the conclusion of the hearing, the WCLJ found that the claimant had made an adequate work search and continued his benefits. He instructed the claimant to go back to ACCES-VR, and explained that the claimant likely misunderstood what he had been told by them. The findings are contained in the WCLJ decision filed on June 30, 2014.

In a rebuttal to the carrier's initial application for administrative review, the claimant's counsel asked that the carrier's application be rejected because it was not signed by an attorney, and argued that the appeal was rendered moot by the WCLJ's June 25, 2014, finding that the claimant has remained attached to the labor market.

In its application for administrative review from the WCLJ's decision filed on June 30, 2014, the carrier argued that the claimant failed to prove a sufficient work search. The carrier also pointed out the claimant's admission that he had looked for work outside of his restrictions, and thus argued that his work search was not in good faith.

In rebuttal, the claimant's counsel argued that all of the providers agree the claimant is a surgical candidate who has not reached maximum medical improvement. Per the carrier's own consulting physicians, the claimant remains significantly restricted. The claimant requires an assistive device to walk. In light of these facts, as well as the fact that the claimant does not have the necessary skills for sedentary employment, it is not reasonable to expect the claimant to seek or find employment at this time.

On September 5, 2014, the claimant submitted an August 27, 2014, letter from ACCES-VR addressed to the claimant, stating that "[w]e are unable to take any further action on your referral/application for vocational rehabilitation services because you have noted that you are currently 75% disabled and additional surgery is being considered for the right foot." The letter goes on to advise the claimant of his right to seek review of the decision, and provides information about that process.

LEGAL ANALYSIS

Carrier's First Application for Administrative Review

In his rebuttal, the claimant argued that the carrier's application for administrative review of the WCLJ's May 22, 2014, decision not be considered because the cover sheet and the application itself were not signed by an attorney. The carrier has not responded to this contention.

12 NYCRR 300.13(e)(1)(i) provides, in pertinent part, that the Board Panel may deny an application for review "where the complete application for review, including the prescribed cover sheet form if required, was not timely filed with the board or served upon the parties in interest within the 30-day period set forth in subdivision (a) of this section .... ." Therefore, the Board, in its discretion, may consider the carrier's application, or deny review (see Matter of United Transit, 2013 NY Wrk Comp 0346498, rejecting the defective application; compare with Matter of Allied Waste Industries, 2012 NY Wrk Comp 38566, excusing the defect).

While the RB-89 in this case contains a signature in the certification, affirmation, and letter, each signature is followed by the initials of a different individual who placed that signature. Accordingly, the Full Board denies review of the carrier's application for administrative review of the WCLJ's May 22, 2014, decision, as the RB-89 was not properly certified by the attorney that prepared the application, as is required.

Carrier's Second 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 [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]). "[A] claimant who fails to make a demonstration via documentary evidence of his/her participation in a job service location . . . may be found to be incredible on the issue of active participation in a job-location service, and as a result, deemed not attached to the labor market" (Matter of Advance Auto Parts, 2014 NY Wrk Comp G0218238, remitted by Matter of Winters v Advance Auto Parts, 119 AD3d 1041 [2014]).

The carrier argues that the claimant's independent work search was insufficient in part because he sought jobs that are outside of his physical restrictions. However, the sufficiency of claimant's job search must be considered in conjunction with claimant's education, vocational history, and the restrictions imposed by his work-related disability. At the time of his injury, claimant was working in the construction field and testified that he had a tenth grade education and no GED. The carrier's consultants concede that claimant is markedly disabled, has restrictions including changing position every thirty minutes, permissible use of a cane, no climbing, no bending, and no lifting over 15 pounds, and that he is a surgical candidate. Given claimant's significant restrictions, his history of having performed physical labor which he cannot now perform as the result of his work-related disability, and his level of education, there may be very few, if any, jobs available which he is both qualified and physically able to perform. It was not unreasonable for claimant to reach out to various prospective employers to inquire about jobs for which he was qualified based on his work experience, the precise physical requirements of which were unknown to him prior to meeting with the employer and discussing the positions available.

Therefore, the Full Board finds that the preponderance of the credible evidence in the record supports a finding that claimant made a timely, diligent, and persistent effort, in good faith, to obtain employment consistent with his partial disability, and was attached to the labor market during the period in question.

CONCLUSION

ACCORDINGLY, the Full Board declines to consider the carrier's application for administrative review of the WCLJ decision filed May 22, 2014, and that decision remains in effect. The WCLJ decision filed June 30, 2014, is AFFIRMED. No further action is planned by the Board at this time.