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Workers' Compensation Board

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Case # 00304035
Date of Accident: 01/03/2003
District Office: NYC
Employer: Greentree Recycling Corp
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 48218796
Date of Filing of Decision: 10/27/2016
Claimant's Attorney: Kelman Winston & Vallone PC
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 February 12, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the Board Panel should have rendered a decision on the issue of whether claimant was attached to the labor market.

The Workers' Compensation Law Judge (WCLJ) did not render a decision on the issue of labor market attachment and continued the case for further development of the record on that issue.

The Board Panel majority found that that the claimant was attached to the labor market.

The dissenting Board Panel member would have affirmed the WCLJ's decision in its entirety, noting that the WCLJ had not rendered a decision on the issue of labor market attachment and had continued the case for further development on that issue.

On March 11, 2016, the carrier filed a request for Mandatory Full Board Review requesting that the dissenting opinion be adopted and the case continued for further development of the record on the issue of labor market attachment.

Claimant did not file a rebuttal.

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

FACTS

On January 3, 2003, claimant, then a 44 year old driver, was involved in a work-related motor vehicle accident. This claim is established for injuries to the claimant's neck, head, back, right foot, left shoulder, left knees and both elbows, and for depression and anxiety, with an average weekly wage of $170.00.

Claimant also brought a third-party negligence action seeking damages for the injuries he sustained as a result of his January 3, 2003, motor vehicle accident, which was settled in November 2004 for $55,000.00. Claimant received a net recovery of $36,254.00 against which the carrier reserved its right to credit pursuant to Workers' Compensation Law (WCL) § 29(4).

By a stipulation between the parties entered into on December 14, 2005, claimant was classified permanently partially disabled, awards were made from May 18, 2005, forward at the rate of $85.00 per week, and the carrier was authorized to exercise its right to credit effective January 3, 2006 (see decision filed December 20, 2005, and stipulation [C-300.5] signed December 14, 2005). In an administrative decision filed February 3, 2006, the Board found that assuming the carrier continued payments to claimant at the rate of $85.00 until January 3, 2006, the carrier's credit for claimant's net recovery of "$36,666.67" would be exhausted and awards to claimant resume on April 8, 2014, at the rate of $85.00 per week.

Claimant's attorney filed an RFA-1LC (Request for Further Action by Legal Counsel) on May 14, 2014, stating that claimant's "payments should have resumed on 4/8/14 but client has not received a check yet." Based on the RFA-1LC, a hearing was held on August 6, 2014, but the claimant failed to appear. At a hearing on November 6, 2014, all parties were present and the matter was continued to December 30, 2014, for claimant's testimony.

At the December 30, 2014, hearing, claimant testified that he has not worked since being classified permanently partially disabled. He registered with Workforce1 after being advised to do so at the November 6, 2014, hearing. The record reflects that claimant brought to the hearing a Workforce1 registration card and a record of his job search efforts consisting of 14 entries. However, it is unclear whether copies of those documents were formally introduced into evidence and they are not scanned into the Board's electronic case folder.

On cross-examination, claimant testified that he told prospective employer's that he couldn't lift more than ten pounds and couldn't sit or stand for too long. Among the places where he sought employment were several supermarkets and a clothing store. Claimant testified that he has a driver's license, but cannot drive. Some of the entries in his job search log were filled out by the prospective employers. At the conclusion of claimant's testimony, his attorney argued that claimant was not required to demonstrate an attachment to the labor market, that the carrier should not have been permitted to question claimant about his work search, and that awards should resume. Claimant's attorney also argued that "since we protectively had the claimant registered at Work Force 1 and obtained work search we believe the claimant has shown enough proof that he is attached to the labor market" (transcript, 12/30/14 hearing, p. 11). The carrier argued that claimant failed to produce sufficient evidence of labor market attachment to warrant the resumption of awards. The WCLJ directed both parties to submit position papers and continued the case (see decision filed January 5, 2015).

After the parties had submitted position papers, at a hearing on March 16, 2005, the WCLJ found that the carrier could question claimant concerning his attachment to the labor market and continued the case for claimant's further testimony on that issue (see decision filed March 19, 2015). By an application filed April 17, 2015, the claimant sought administrative review of the WCLJ's March 19, 2015, decision, contending that awards should be reinstated and that the carrier has failed to submit sufficient evidence to warrant development of the record on the issue of attachment to the labor market. The claimant argued that before being permitted to question claimant on the issue of labor market attachment, a carrier is required to file an RFA-2 (Carrier's/Employer's Request for Further Action) and to "obtain permission from the Board Panel to reopen a post-classification case and to compel a claimant who was not working during carrier's holiday to look for work."

On June 9, 2015, claimant submitted a C-258 (Claimant's Records of Job Search Efforts/ Contacts), which lists 22 purported job search contacts between April 7, 2015, and May 7, 2015.

LEGAL ANALYSIS

As found by both the Board Panel majority and the dissent, under the holding in Matter of Partners Cleaning LLC (2010 NY Wrk Comp 09663737), the WCLJ properly found that the carrier had the right to develop the record and take claimant's testimony on the issue of labor market attachment.

At the December 30, 2014, hearing, claimant testified regarding his work search effort and the hearing transcript reflects that he produced a Workforce1 registration card and a record of his job search efforts consisting of 14 entries. However, those documents were not scanned into the Board's electronic case folder subsequent to the hearing and could not be reviewed by the Board Panel.

At the hearing on March 16, 2005, the WCLJ found that the carrier was entitled to question claimant concerning his attachment to the labor market and continued the case for claimant's further testimony on that issue (see decision filed March 19, 2015). The WCLJ did not render a decision on the issue of labor market attachment.

After the WCLJ's March 19, 2015, decision was issued, the claimant submitted a C-258 listing 22 purported job search contacts between April 7, 2015, and May 7, 2015. The carrier has not had the opportunity to cross examine the claimant concerning the job search activities reflected in the C-258.

The Full Board finds that this matter should be continued for claimant to testify regarding his further job search efforts, as well as any other efforts he has made to remain attached to the labor market, and for him to submit any additional corroborative documentary evidence of those efforts that he wishes the Board to consider, before a decision is rendered by the WCLJ with respect to the issue of labor market attachment.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed March 19, 2015, is AFFIRMED. Claimant is directed to submit into evidence copies of the Workforce1 registration card and the record of his job search activities that he brought to the December 30, 2014, hearing. The case is continued.