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Workers' Compensation Board

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Case # G1373059
Date of Accident: 04/17/2015
District Office: NYC
Employer: Demar Mechanical Inc
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 67973529
Date of Filing of Decision: 03/24/2017
Claimant's Attorney: Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on February 28, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed October 18, 2016.

ISSUE

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

The Workers' Compensation Law Judge (WCLJ) found that the claimant was attached to the labor market and issued awards from October 5, 2015, and continuing at the tentative rate of $300.00 per week.

The Board Panel majority modified the WCLJ decision and found that the claimant failed to demonstrate a sufficient job search effort to be considered attached to the labor market and rescinded all awards.

The dissenting Board Panel member would find that the claimant had demonstrated a sufficient job search effort to be considered attached to the labor market.

The claimant filed an application for Mandatory Full Board Review on November 14, 2016.

The carrier filed a rebuttal on December 1, 2016.

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

FACTS

This case is established for injuries to the claimant's neck, back, and head that were the result of a work-related accident which occurred on April 17, 2015, when the claimant fell down a flight of stairs. The claimant's average weekly wage was set at $720.00.

The claimant submitted written documentation of his job searches for the periods December 18, 2015, through March 2, 2016 (doc. #263232381), and April 21, 2016, through May 13, 2016 (doc. #265021444).

At a hearing held on May 26, 2016, the claimant testified that his work restrictions did not allow him to do heavy work, so he was looking for light duty work. He applied for jobs that did not put too much strain on his body, including cashier positions and customer service positions. He also testified that he went to the New Jersey Department of Labor, Division of Vocational Rehabilitation Services. He had a resume, he provided it to the different companies where he applied, he filled out job applications, but he did not hear back about any of the jobs. The claimant testified that he does not have a car or a computer.

At the conclusion of the hearing held on May 26, 2016, the WCLJ found that the claimant was attached to the labor market as of October 5, 2015, and made awards. Those findings and awards are memorialized in a notice of decision filed on June 2, 2016.

In the carrier's application for administrative review of the notice of decision filed on June 2, 2016, it argued that the WCLJ's finding that the claimant is attached to the labor market is not based upon substantial evidence. The claimant did not produce proof that he had undergone any re-training, he did not produce his resume, he applied for jobs requiring a lot of standing, which he cannot do for long periods of time, and the majority of his applications were given to companies that were not hiring.

The claimant argued in rebuttal that the WCLJ decision should be affirmed in its entirety because the claimant's consistent search for work within his restrictions was sufficient to support the award made by the WCLJ.

LEGAL ANALYSIS

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.).

The claimant testified concerning his job search and has submitted two lists showing his outreach to 60 potential employers seeking employment within his medical restrictions of sales positions, cashier positions, and host positions. While some of these were "cold calls," many of them were also employers that had potential openings. However, claimant failed to note the phone number of the individual he spoke with at each potential employer for any of the positions he applied for prior to January 14, 2016.

A review of the record indicates that the claimant has reattached to the labor market by demonstrating an independent job search that is timely, diligent, and persistent. A partially disabled person need only seek employment within his or her medical restrictions (Matter of Sanchez v Consolidated Edison Co. of N.Y., Inc., 40 AD3d 1153 [2007]).

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant has produced sufficient documentary evidence of his attachment to the labor market through a timely, diligent, and persistent independent job search from January 14, 2016, to March 2, 2016, and from April 21, 2016, to the hearing on May 26, 2016.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed June 2, 2016, is MODIFIED to find insufficient evidence of attachment to the labor market to support awards for the periods from October 5, 2015, to January 14, 2016, and from March 2, 2016, to April 21, 2016. Claimant is found to have no compensable lost time during those periods. The decision is in all other respects affirmed. No further action is planned by the Board at this time.