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Workers' Compensation Board

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Case # G0406806
Date of Accident: 01/27/2007
District Office: Albany
Employer: Manpower
Carrier: Illinois National Ins Co
Carrier ID No.: W112254
Carrier Case No.: 005520000208WC01
Date of Filing of Decision: 10/27/2016
Claimant's Attorney: Dennis Kenny Attorney at Law
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 on March 7, 2016.

ISSUE

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

The Workers' Compensation Law Judge (WCLJ) found that the claimant had demonstrated an attachment to the labor market and made awards from March 10, 2015, forward.

The Board Panel majority modified the WCLJ decision to find that there was insufficient evidence that the claimant was attached to the labor market and rescinded awards.

The dissenting Board Panel member would find that the claimant is attached to the labor market for the period March 10, 2015, to May 1, 2015, based on her participation with One Stop and/or ACCES-VR and is entitled to awards, after March 10, 2015, at the assigned temporary partial disability rate.

On April 5, 2016, the claimant filed an application for Mandatory Full Board Review.

The carrier filed a rebuttal on May 5, 2016.

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

FACTS

The claimant injured her left wrist at work on January 27, 2007. This claim was not filed until 2011 and was not indexed until 2012, at which time the carrier accepted liability for the claim.

This claim was then established for the left wrist with an average weekly wage of $250.08. A finding was made that claimant had no compensable lost time from January 28, 2007, to November 26, 2012, and awards from November 26, 2012, to March 22, 2013, were held in abeyance. Awards were made at various rates beginning March 22, 2013, and the carrier raised labor market attachment at the September 23, 2014, hearing.

The claimant submitted a C-258 (Claimant's Record of Job Search Efforts/Contacts) to the Board on May 1, 2015, that covered the period September 25, 2014, to March 28, 2015, and a letter from ACCES-VR, dated February 12, 2015, stating that the claimant had an appointment on February 24, 2015, to complete her ACCES-VR intake process and discuss her vocational goals.

At a hearing on May 1, 2015, claimant testified that she followed up with most of the applications listed on her C-258 and she did not hear back, except for rejections or some letters indicating that she was not needed. The claimant testified that she signed up with the Department of Labor, she had gone there, and they provided her with lists of names. The claimant testified that her doctor gave her a job restriction of not lifting anything heavy and most of the jobs that she had applied for had been within this restriction. The claimant testified that she was also involved with ACCES-VR, she had a case manager there, and they were going to provide her with job training. The claimant testified that she was interested in becoming a companion, an advocate, or a receptionist. The claimant testified that she had not received any training yet and was waiting to hear from her case manager. The claimant testified that she had called ACCES-VR several times a week to follow-up. She testified that the last time that she applied for a job was in March of 2015.

At the conclusion of the hearing held on May 1, 2015, the WCLJ found that the claimant demonstrated her attachment to the labor market and made awards from March 10, 2015, to May 1, 2015, and continuing at the rate of $100.03 (see notice of decision filed on May 6, 2015).

In its application for administrative review of the notice of decision filed on May 6, 2015, the carrier argued that the claimant had not demonstrated attachment to the labor market because her interaction with ACCES-VR did not rise to the level of "participation" defined in Matter of American Axle, 2010 NY Wrk Comp 80303659. The carrier argued that the claimant was not entitled to indemnity benefits from March 10, 2015, forward.

The claimant argued in rebuttal that the WCLJ was correct in finding her attached to the labor market and continuing indemnity awards because she satisfied the requirement of labor market attachment pursuant to Matter of American Axle, 2010 NY Wrk Comp 80303659, through her independent job search and her active participation in VESID/ACCES-VR.

LEGAL ANALYSIS

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).

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 fails to establish that the claimant is currently attached to the labor market. A review of the record indicates that the claimant's independent job search log (C-258) fails to list the names of individuals contacted and the potential employers' addresses. Therefore, the documentation is incomplete because the information provided does not strictly comply with the requirements for an independent work search as set forth in Matter of American Axle, 2010 NY Wrk Comp 80303659. In addition, the claimant testified that she stopped her independent job search in March of 2015 to concentrate on her involvement with ACCES-VR, a vocational rehabilitation program.

The record contains a letter which was sent from ACCES-VR, dated February 12, 2015, to the claimant stating that she had an appointment on February 24, 2015, to complete her ACCES-VR intake process and discuss her vocational goals. Matter of American Axle, 2010 NY Wrk Comp 80303659, requires the claimant to not only contact, but to "actively participate" with ACCES-VR in order to demonstrate labor market attachment. The claimant testified that she had not yet assembled her resume or attended any training through ACCES-VR and was waiting to hear from her case manager. The claimant's attendance at one meeting with ACCES-VR is insufficient to find that she was attached to the labor market as it does not demonstrate active participation.

Therefore, the Full Board finds, upon review of the record and based upon the preponderance of the evidence, that the claimant has voluntarily withdrawn from the labor market as of March 10, 2015, and has no compensable lost time from March 10, 2015, to May 1, 2015. If the claimant has evidence that she actively participated with ACCESS-VR from March 10, 2015, to May 1, 2015, she may apply for a reopening of the case with that evidence.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed May 6, 2015, is MODIFIED to find that claimant has produced insufficient evidence that she was attached to the labor market as of March 10, 2015, and to rescind awards. These findings are made without prejudice to claimant producing documentation that she actively participated with ACCESS-VR during the period from March 10, 2015, to May 1, 2015. The decision, as modified, is otherwise affirmed. No further action is planned by the Board at this time.