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Workers' Compensation Board

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Case # G0757193
Date of Accident: 11/15/2013
District Office: Syracuse
Employer: SUNY Syracuse Hospital
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 66806548 67
Date of Filing of Decision: 02/07/2018
Claimant's Attorney: Fine Olin & Anderman PC
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on December 19, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed April 6, 2017.

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 had reattached to the labor market as of May 11, 2016.

The Board Panel majority reversed the WCLJ decision and found that the claimant was not attached to the labor market.

The dissenting Board Panel member would affirm the WCLJ decision.

The claimant filed an application for Mandatory Full Board Review on April 17, 2017, arguing that the issue of labor market attachment is moot due to the recent amendment to Workers' Compensation Law (WCL) 15(3)(w), and that even without the change in the law, she showed reattachment via her participation with ACCES-VR.

The carrier filed a rebuttal on May 16, 2017, arguing that the claimant's request for Mandatory Full Board Review should be denied because there is insufficient evidence demonstrating that the claimant has been engaged in an active, diligent, and persistent job search.

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

FACTS

This case is established for an occupational disease to the neck and for bilateral hands with a date of disablement of November 15, 2013. The claim was subsequently amended to include aggravations to the right second finger and the right third finger.

In a decision filed May 5, 2016, claimant was found to be permanently partially disabled based on B severity impairment of her cervical spine and her hand condition. Based on her permanent physical impairment and vocational factors, the WCLJ concluded that the claimant had 66.66% loss of wage earning capacity (LWEC). However, the WCLJ found that the claimant was not attached to the labor market, that she had no compensable lost time from March 4, 2014, forward, and therefore made no awards. The carrier requested administrative review and in a decision filed April 10, 2017, the Board Panel majority modified the WCLJ decision to find that the claimant had a 50% LWEC, but affirmed the WCLJ's other findings. The Board Panel's April 10, 2017, decision is the subject of a separate application for Mandatory Full Board Review.

The claimant subsequently requested that the claim be reopened to consider whether she reattached to the labor market. The claimant submitted documentation from the State Education Department, indicating that she was eligible for vocational rehabilitation services from ACCES-VR and scheduled a meeting to plan her vocational rehabilitation program on July 20, 2016. The claimant also submitted documentation that she had an appointment with an ACCES-VR vocational rehabilitation counselor on September 6, 2016.

At a hearing held on September 12, 2016, the claimant testified that on May 11, 2016, she went to an orientation at ACCES-VR and following the orientation she submitted her paperwork to them. She met with her counselor's assistant on June 9, 2016, she met with her counselor on July 20, 2016, and September 6, 2016, and she had another appointment scheduled for October 26, 2016. She also testified that she had a vocational evaluation scheduled for October 17, 2016. Starting on May 13, 2016, she had applied for ten jobs through ACCES-VR and she had heard back from two of the positions. She took a regular retirement in June of 2015 because she could no longer do her job, and she started collecting her regular social security benefits in May of 2016. The doctor gave her formal restrictions of ten to twelve pounds pushing and pulling and eight to ten pounds lifting.

At the conclusion of the September 12, 2016, hearing, the WCLJ found the claimant's testimony credible and that she was attached to the labor market due to her connection with ACCES-VR. The WCLJ issued awards from May 11, 2016, forward at the tentative rate of $150.00 per week. These findings were memorialized in a notice of decision filed on September 15, 2016.

In the carrier's application for administrative review, it argued that the WCLJ decision should be reversed because the claimant has not demonstrated labor market attachment.

The claimant argued in rebuttal that the carrier's application for review was untimely and should be denied. The claimant also argued that she was attached to the labor market and the WCLJ should be affirmed.

LEGAL ANALYSIS

Amendment to WCL 15(3)(w)

Effective April 10, 2017, WCL 15(3)(w) was amended to state that for a claimant who has been classified as permanently partially disabled, benefits will continue during the period of claimant's disability, subject to the applicable statutory maximum benefit weeks, "without the necessity for the claimant who is entitled to benefits at the time of classification to demonstrate ongoing attachment to the labor market."

Here, claimant was classified with a permanent partial disability in a decision filed May 5, 2016. That decision also held that the claimant was not attached to the labor market at that time and was not entitled to awards. Therefore, the claimant's argument that the issue of labor market attachment is moot in this matter is incorrect and she must present evidence of reattachment to the labor market because at the time she was classified, she was found not to be attached to the labor market and therefore not entitled to benefits.

Reattachment to the Labor Market

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; 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; 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 credibly testified that she went to an orientation at ACCES-VR on May 11, 2016, she met with her counselor's assistant on June 9, 2016, she met with her counselor on July 20, 2016, she met with her counselor on September 6, 2016, and she had another appointment scheduled for October 26, 2016. The claimant also testified that she had a vocational evaluation scheduled for October 17, 2016. In addition, the claimant provided copies of the letters scheduling her meetings on July 20, 2016, and September 6, 2016. The letter from ACCES-VR dated July 11, 2016, confirms that claimant is eligible for vocational rehabilitation services with ACCES-VR.

Therefore, the Full Board finds that the preponderance of the evidence supports a finding that the claimant has shown reattachment to the labor market through her active and good faith participation with ACCES-VR.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed September 15, 2016, is AFFIRMED. No further action is planned at this time.