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Workers' Compensation Board

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Case # 00739555
Date of Accident: 08/30/2007
District Office: NYC
Employer: Aegis Communications Group Inc
Carrier: American Home Assurance Co
Carrier ID No.: W029003
Carrier Case No.: 709533653
Date of Filing of Decision: 10/27/2016
Claimant's Attorney: Howard A Kornfeld Law Offices
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on September 20, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed April 1, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant is entitled to additional compensation pursuant to Workers' Compensation Law (WCL) § 15(3)(v).

The Workers' Compensation Law Judge (WCLJ) found claimant is entitled to additional compensation pursuant to WCL § 15(3)(v).

The Board Panel majority affirmed the WCLJ.

The dissenting Board Panel member would find that the claimant's request for additional compensation under WCL § 15(3)(v) is inadequate as the claimant (1) failed to comply with a prior Board Panel direction to produce her social security disability benefits application, and (2) failed to demonstrate her participation in a Board approved rehabilitation program as required by the statute.

In its application for Mandatory Full Board Review filed April 25, 2016, the carrier contends that WCL § 15(3)(v) does not apply because the claimant has not shown that the impairment of her earning capacity is due solely to the compensable injury. In the alternative, the carrier contends that the case should be returned to the trial calendar to develop the record on the proper rate of compensation.

In her rebuttal filed May 19, 2016, the claimant argues that the decision of the Board Panel majority should be affirmed.

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

FACTS

The claim is established for injuries to the right shoulder and the right elbow sustained on August 30, 2007. In a decision filed on December 6, 2012, the claimant was awarded a 65% schedule loss of use of the right arm, with a protracted healing period of 49.6 weeks. This schedule loss of use award "ran out" on June 30, 2012.

The claimant's attorney filed an RFA-1LC (Request for Further Action by Legal Counsel) on May 3, 2013, requesting further action to consider supplemental benefits pursuant to WCL § 15(3)(v).

In a decision filed on September 24, 2013, the WCLJ found that the claimant was eligible for additional benefits under WCL 15(3)(v), but determined monetary awards to be premature because the schedule award was still running.

In a Board Panel decision filed on September 15, 2014, it was observed that the record contained evidence that would support an award of additional benefits pursuant to WCL § 15(3)(v), but further noted the ready availability of additional probative evidence in the form of the claimant's application for social security disability benefits and the decision granting that application together with underlying documentation. The finding of eligibility for additional benefits under WCL 15(3)(v), and the attorney fee and directions based thereon, were rescinded, without prejudice, pending production by the claimant of her social security benefits application and any decision or other document awarding such benefits.

The claimant's attorney filed an RFA-1LC on October 29, 2014, together with a copy of a six-page notice of award from the Social Security Administration, advising that the claimant was entitled to monthly disability benefits beginning in February 2008, and noting that the claimant became disabled under the applicable rules on August 30, 2007. The submission also included a copy of a letter informing the claimant of the amount of her regular monthly social security benefits beginning in December 2013, and a copy of a summary of the claimant's application for supplemental social security income benefits on September 17, 2014. The RFA-1LC does not contain a copy of the claimant's application for social security benefits.

At a hearing held on March 6, 2015, the WCLJ stated that the claimant was not present, noted that the case was on remand from the Board Panel, and that the claimant's application for social security benefits was supposed to be produced. The WCLJ indicated that an RFA-1 in the file "shows social security benefits" and is labeled "application summary for MSSI." The WCLJ then questioned whether "there is some sort of medical evidence in the file that we are supposed to get or just the application by the claimant that is supposed to be produced?" The claimant's attorney discussed events at the prior hearing, and then requested that her WCL § 15(3)(v) benefits be reinstated. Noting that the claimant acknowledged that she was diagnosed with diabetes and high cholesterol, and was taking anti-depressants, the carrier's attorney requested the production of "whatever medical reports the claimant submitted in support of her social security application." The WCLJ then continued the case for the production of further evidence. The claimant's attorney argued that further evidence did not need to be produced as the application for social security shows that the claimant wasn't alleging any other condition as disabling and that's what the Board Panel was concerned about following the appeal. After concluding that the claimant's schedule expired on June 30, 2012, the WCLJ continued the case to April 20, 2015, for the claimant's testimony, the production of any additional documents "above and beyond those already produced," and a final decision on the WCL § 15(3)(v) issue. The WCLJ indicated that the claimant may submit further medicals as requested by the carrier's attorney. The WCLJ also referred this case to the actuarial unit to calculate how much the social security offset would be as the schedule loss of use ran out on June 30, 2012.

There is no indication in the file that the claimant's application for social security benefits was filed at the conclusion of the March 6, 2015, hearing, or thereafter.

In a decision filed on March 18, 2015, for the hearing held on March 6, 2015, the WCLJ noted that the Board Panel rescinded his prior WCL 15(3)(v) findings. The WCLJ concluded that the claimant "has submitted Social Security Disability Application" and might submit further medical evidence. The case was continued for a ruling on WCL § 15(3)(v) applicability with evidence and for testimony of the claimant.

The claimant testified at a hearing held on April 20, 2015, that she applied for social security disability based solely on the established injuries to her arm sustained on August 30, 2007, and acknowledged receiving the notice of award from the Social Security Administration granting the application based on the August 30, 2007, disability date. She also indicated that she attended a vocational rehabilitation program through the Board in 2013. She subsequently conducted a job search through the rehabilitation program, but received no offers of employment. There is no indication that the claimant submitted her social security disability benefits application at the April 20, 2015, hearing, despite a specific request by the carrier's attorney to do so.

The carrier specifically raised the issue of the claimant's participation in a rehabilitation program at the April 20, 2015, hearing (see April 20, 2015, Hearing Minutes, at page 10), and noted an exception to all findings and awards reached at that hearing (see April 20, 2015, Hearing Minutes, at page 13).

In a decision filed April 23, 2015, the WCLJ found WCL 15(3)(v) eligibility per the record, and issued awards to the claimant from June 20, 2012, to April 21, 2015, and continuing at $264.11 per week, which reflects a total rate of $320.00, less a social security offset in the amount of $55.89. The claimant's attorney was awarded a fee in the amount of $5,900.00.

The carrier requested administrative review of the WCLJ's decision.

LEGAL ANALYSIS

WCL § 15(3)(v) requires the claimant to prove that the impairment of his/her wage-earning capacity is due solely to the compensable injury, and that he/she participated in a Board approved rehabilitation program or was deemed not to be a feasible candidate for a rehabilitation program (Matter of Ramroop v Flexo-Craft Print., Inc., 11 NY3d 160 [2008]; Matter of Lee v Weiss & Sons Paper & Twine Co., 96 AD2d 620 [1983]).

The Full Board finds, upon review of the evidence of record, that the claimant is not entitled to additional compensation pursuant to WCL § 15(3)(v). The September 15, 2014, Board Panel decision rescinded the finding of claimant's eligibility for additional benefits under WCL § 15(3)(v), and remanded the case to the WCLJ specifically for the production of the claimant's social security disability benefits application and any decision or other documents awarding such benefits. While the claimant produced the decision that awarded her social security disability benefits and a summary of her social security disability benefits application, review of the case file reveals that she did not ultimately produce the application at the subsequent hearings held on March 6, 2015, and April 20, 2015. Based on the failure of the claimant to produce a record specifically directed to be produced by a Board Panel, the finding that the claimant is entitled to WCL § 15(3)(v) benefits cannot stand. Not only did the claimant fail to abide by this specific Board Panel directive, her failure foreclosed the WCLJ and the Board Panel from making an informed decision with respect to whether the impairment of her wage-earning capacity was due solely to her compensable injury. That the Social Security Administration concluded that the claimant was entitled to social security disability benefits based on her right shoulder and right elbow injuries does not require a contrary result, as that determination was made under a Federal statute, not the WCL.

The Board Panel further finds that the claimant may pursue such additional compensation under WCL § 15(3)(v) in the future, upon submitting a copy of her social security disability benefits application, and satisfactory evidence of her participation in a Board approved vocational rehabilitation program, or evidence demonstrating she was deemed not to be a feasible candidate for a rehabilitation program.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed April 23, 2015, is MODIFIED to rescind the finding that the claimant is eligible for additional compensation pursuant to WCL § 15(3)(v) and the award of additional compensation and the attorney's fees based thereon. The decision is AFFIRMED in all other respects. No further action is planned by the Board at this time.