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Workers' Compensation Board

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Case # 70206926
Date of Accident: 06/08/2002
District Office: Rochester
Employer: Kal Tool & Die Co
Carrier: Safety National Casualty Corp
Carrier ID No.: W193502
Carrier Case No.: MS2002-6208
Date of Filing of Decision: 12/02/2016
Claimant's Attorney: The Mannix Group, LLC
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on October 18, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on February 29, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant was attached to the labor market and entitled to reduced earnings awards after April 23, 2015.

The Workers' Compensation Law Judge (WCLJ) found that the claimant had reattached to the labor market as of April 23, 2015, and made awards at the tentative reduced earnings rate of $200.00 per week.

The Board Panel majority affirmed the WCLJ decision.

The dissenting Board Panel member would find that the claimant had failed on a number of occasions to produce evidence of a diligent, timely and persistent independent job search, had failed to avail himself of vocational training opportunities, and the mowing of lawns and providing volunteer babysitting services are insufficient evidence of a good faith effort to be reattached to the labor market.

In the carrier's application for Mandatory Full Board Review, it argues that the claimant has not reattached to the labor market and all awards from April 23, 2015, forward should be rescinded.

The claimant filed an untimely rebuttal.

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

FACTS

This case is established for an injury to the claimant's back and consequential depression stemming from a June 8, 2002, work-related accident. The claimant's average weekly wage was set at $471.90.

In a reserved decision filed on July 31, 2014, the WCLJ found the claimant had a moderate to marked degree of disability after February 25, 2014, and directed the claimant to produce proof of labor market attachment every 60 days.

At the conclusion of the hearing held on January 22, 2015, the WCLJ found that the claimant had not demonstrated an adequate job search and awards were suspended.

In a notice of decision filed on March 2, 2015, the WCLJ directed the claimant to produce proof of all jobs applied to since January 22, 2015.

At a hearing held on April 20, 2015, the claimant testified that he searched for work using a computer, filing on-line applications, distributing his resume, and applying in person. He spoke with the Board's vocational counselor once. He had two responses to his job search, but did not have any job offers. He applied for positions as a golf course grounds-person, an assembler, a parking lot attendant, a property maintenance technician, a yard fork truck operator, a dishwasher, delivery person, and security guard. The claimant described his restrictions as no lifting over ten pounds and no repetitious work involving moving back and forth, turning or twisting a lot. A number of the jobs that he applied for did not fall within his job restrictions. He was not currently enrolled in a retraining program.

At the conclusion of the April 20, 2015, hearing, the WCLJ found that the claimant was not attached to the labor market because his job search was insufficient. The WCLJ directed that the claimant must apply for jobs at businesses that have openings and that the job requirements must be within his medical restrictions. These findings are reflected in a notice of decision filed on April 23, 2015.

At a hearing on June 1, 2015, the claimant testified that he returned to work on April 23, 2015, mowing lawns. He has distributed over fifty flyers advertising his lawn care service since April 23, 2015, and he was continuing to distribute the flyers in mail boxes every other day with his son's help. He has three regular customers and he cuts each of their lawns once a week. He transports his mower on a trailer behind his truck. He was also caring for a neighbor's disabled child four to five days a week after she finishes school. He sometimes gets paid for watching the child, he will be watching her over the summer for four hours a day after she attends summer school, and he will be getting paid. He was also continuing to apply for work on-line and in-person.

At the conclusion of the June 1, 2015, hearing the WCLJ found that claimant had reattached to the labor market as of April 23, 2015, and made awards from April 23, 2015, forward at the $200.00 tentative reduced earnings rate. Those findings are reflected in a notice of decision filed on June 4, 2015.

The claimant underwent authorized surgery, including revision lumbar fusion, on July 15, 2015.

In its application for administrative review of the WCLJ decision filed June 4, 2015, the carrier argued that lawn mowing and unpaid child care do not constitute attachment to the labor market and awards made at the June 1, 2015, hearing should be rescinded.

The claimant argued in rebuttal that the WCLJ decision should be affirmed in its entirety because there were no errors of law or fact. The claimant argued that the carrier's application was frivolous and that penalties should be against the carrier pursuant to Workers' Compensation Law (WCL) §§ 23, 25(2)(c), and 114-a(3)(i), and against the carrier's counsel pursuant to WCL § 114-a(3)(ii).

LEGAL ANALYSIS

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).

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 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 evidence supports that the claimant has reattached to the labor market. The claimant credibly testified that he had started a lawn mowing business, he had three customers, and he was mowing each of their lawns every week. The claimant testified that he was continuing to hand out business fliers to generate more customers and he hoped to grow the business. In addition, the claimant credibly testified that he was also continuing to look for work within his physical restrictions through an independent job search. The claimant also testified that he was caring for a neighbor's disabled child four to five days a week after school, he will be watching her over the summer for four hours a day, and he will be getting paid. It is clear from a review of the record that the claimant reattached to the labor market through the only work he could find, based upon his medical restrictions, and he was continuing to search for more substantial employment within his restrictions.

The carrier argues that the claimant's lawn moving and child care employment activities are "causal employment" and do not qualify as labor market attachment pursuant to Superior Walls of Upstate NY, 2012 WRK Comp 70709004. In that case, the Board Panel found that "the minimal information regarding the claimant's part-time, under the table work mowing lawns did not demonstrate an attachment to the labor market" (id.). In this matter, the claimant provided the flier he created to generate customers and had been earning weekly income from this employment since April 23, 2015. The claimant also credibly testified that he hoped to grow the business. There is no requirement that a claimant only look for or engage in full-time employment in order to reattach to the labor market (see Matter of Meisner v United Parcel Serv., 243 AD2d 128 [1998], lv dismissed 93 NY2d 848 [1999]).

Therefore, the Full Board finds, upon review of the record and based upon the preponderance of the evidence, that the claimant had reattached to the labor market and was entitled to reduced earnings awards after April 23, 2015.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed June 4, 2015, is AFFIRMED. The case is adjourned to a hearing calendar for the claimant to provide up to date information regarding retraining and to address post-surgery awards. The case is continued.