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Case # G0483220
Date of Accident: 10/05/2011
District Office: Buffalo
Employer: Garden Gate HCF
Carrier: Arch Insurance Company
Carrier ID No.: W087381
Carrier Case No.: 004406000014WC01
Date of Filing of Decision: 10/27/2016
Claimant's Attorney: Connors and Ferris LLP
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 March 14, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant reattached to the labor market.

The Workers' Compensation Law Judge (WCLJ) found that the claimant reattached to the labor market effective November 7, 2014, and made awards.

The Board Panel majority reversed the WCLJ's decision in its entirety and found that the claimant had not reattached to the labor market.

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

The claimant filed an application for Mandatory Full Board Review on April 13, 2016.

The carrier filed a timely rebuttal on May 13, 2016.

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

FACTS

On October 5, 2011, claimant, then a 53 year old certified nurse's aide (CNA), was injured while transferring a patient. This claim is established for injuries to the claimant's neck and left shoulder, and her average weekly wage was set at $555.14.

In a notice of decision filed on July 17, 2014, the WCLJ determined that the claimant had voluntarily removed herself from the labor market as of July 15, 2014.

The claimant submitted two C-258 forms (Claimant's Record of Job Search Efforts/Contacts) detailing her job search efforts from July 17, 2014, to August 20, 2014, and requested that a hearing be held to consider resuming payments. The C-258s indicate that the claimant's search consisted of mainly retail outlets and restaurants.

At a hearing held on October 23, 2014, the claimant testified that she started to look for work following the July 15, 2014, hearing. She was looking for cashier, sales, and hostess positions and the work was within her restrictions. The claimant testified that she was unsuccessful in her job search and her search consisted of in-person applications and computer searches. She testified that her physical restrictions consisted of no lifting, no raising her arm above her head, no sitting for extended periods of time, and no standing for extended periods of time. On cross-examination, the claimant admitted that the jobs that she had applied for required the employee to stand for the entire shift and pursuant to her doctor's restrictions, she was unable to stand for an entire shift. The claimant testified that she did not think she was physically capable of performing a number of the jobs which she had applied for that required standing. The claimant testified that she applied for 2-3 jobs per week and she did not have copies of resumes or cover letters that she submitted during her job search.

In a decision filed October 29, 2014, the WCLJ found that the claimant did not demonstrate a good-faith and diligent search for employment sufficient to find that she had reattached to the labor market.

The claimant subsequently submitted another C-258 detailing her job search from December 1, 2014, to January 19, 2015. The document indicates that the claimant's job search again consisted of mainly retail establishments and restaurants. The claimant also submitted to the Board a letter from ACCES-VR dated January 13, 2015, which stated that due to her limitations, the parties agreed that she would not benefit from ACCES-VR Services at this time.

At a hearing held on January 20, 2015, the claimant testified that she was 57 years old, had a high school diploma, and had a CNA certificate that had now expired. She had worked as a CNA for twenty-two years. She first went to ACCES-VR on November 7, 2014, and filled out paperwork. She met with her ACCES-VR counselor on December 16, 2014, and he stated that ACCES-VR could not help her due to all her restrictions. The claimant testified that she went in-person to One-Stop on December 19, 2014, and looked at the job alert board, but did not apply for any jobs. She testified that she went to One-Stop a second time on January 16, 2015, and was again told to look for "jobs on the boards," and received printed job searches. She attempted to apply for one job, but could not because it "was not on the board anymore." She had not gone back to One-Stop after January 16, 2015. She testified that she uses various search engines when she looks for jobs on the computer and she does not have a printer so she could not print out the responses she received. The claimant testified that she was applying to "just anything" in her job search and she did not know if the employers would be able to accommodate her restrictions. The claimant testified that she had been told that she needed to apply to three jobs per week.

In decision filed on January 26, 2015, the WCLJ found that the claimant had produced sufficient evidence to demonstrate that she had reattached to the labor market and made awards from November 7, 2014, forward.

In the carrier's application for administrative review of the January 26, 2015, WCLJ decision, it argued that the WCLJ erred by finding the claimant reattached to the labor market because the claimant's job search was not conducted in good faith, the claimant's job search log failed to include any of the additional requisite documentation set forth in American Axle, 2010 NY Wrk Comp 80303659, the claimant had previously conceded that she was unable to physically perform many of the jobs that she had applied for, and claimant's limited involvement with One-Stop (Department of Labor) did not provide a basis to find the claimant attached to the labor market.

The claimant argued in rebuttal that the WCLJ was correct in finding that she had made sufficient efforts to demonstrate attachment to the labor market. The claimant argued that the WCLJ's decision was based on substantial evidence and should be affirmed in its entirety.

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; 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; 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]). 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.).

Here, the claimant produced evidence of a good-faith attempt to participate in a Board approved rehabilitation program (ACCES-VR). Claimant also, by her credible and convincing testimony, with accompanying documentation, showed that she made a diligent and sufficiently persistent job search. The evidence provided by the claimant, in total, warrants a finding of a reattachment to the labor market, as well as a continued attachment to the labor market thereafter.

Therefore, the Full Board finds that the claimant's testimony regarding her job search, her production of documentation of the job search, and her testimony concerning her contacts with ACCES-VR and One-Stop, was sufficient to warrant the finding that claimant reattached to the labor market effective November 7, 2014.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed January 26, 2015, is AFFIRMED. No further action is planned by the Board at this time.