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Workers' Compensation Board

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Case # G0835872
Date of Accident: 03/21/2014
District Office: Syracuse
Employer: Family Dollar Stores
Carrier: Indemnity Ins. of N America
Carrier ID No.: W112502
Carrier Case No.: B463506803000101635
Date of Filing of Decision: 04/07/2017
Claimant's Attorney: Littman & Babiarz
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on February 28, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on August 4, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant was attached to the labor market after March 9, 2015.

The Workers' Compensation Law Judge (WCLJ) found that the claimant demonstrated an attachment to the labor market because she was applying for jobs, she had two interviews, she completed a resume, and she was getting her G.E.D.

The Board Panel majority affirmed the WCLJ decision and found that the claimant's efforts to remain attached to the labor market supported the awards made by the WCLJ.

The dissenting Board Panel member would find that the claimant did not produce sufficient evidence to show she was attached to the labor market.

In the carrier's application for Mandatory Full Board Review, it argues that based on the claimant's separation from employment on August 26, 2014, for reasons unrelated to her March 21, 2014, work accident, and her subsequent release to return to work without restrictions on October 17, 2014, it must be found that the claimant had no compensable lost time since October 17, 2014. In the alternative, the carrier argues that the claimant had not produced sufficient evidence of a diligent, timely, persistent search for work within her restrictions.

The claimant in rebuttal argues that she has met the burden of proving that she was attached to the labor market.

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

FACTS

This case is established for a low back injury stemming from a work-related accident on March 21, 2014. The claimant's average weekly wage was set at $656.60.

In correspondence dated August 19, 2014, a physician's assistant in the office of Dr. Pietropaoli, the claimant's treating orthopedist, indicated that the claimant was to continue light duty work with restrictions as of August 19, 2014, and was allowed to return to full duty work on September 15, 2014, pending MRI authorization.

The claimant was laid off from the employer of record on August 26, 2014, when the store she managed closed.

In correspondence dated September 3, 2014, a physician's assistant in Dr. Pietropaoli's office, indicated that the claimant was to continue light duty work with restrictions as of September 3, 2014, and was allowed to return to full duty work on October 17, 2014.

Dr. Pietropaoli, in correspondence dated September 3, 2014, and October 15, 2014, indicated that the claimant had a 50% disability. In the October 15, 2014, correspondence, Dr. Pietropaoli referred the claimant to Dr. Lavelle, a spine specialist, and extended her light duty until she saw the specialist.

In correspondence dated November 4, 2014, Dr. Lavalle's physician's assistant indicated that the claimant had a 75% disability. In follow-up examinations on March 9, 2015, and May 15, 2015, Dr. Lavalle found a 50% temporary impairment.

At a hearing held on April 7, 2015, the claimant testified that the last day that she worked was August 26, 2014. She had worked as the store manager for approximately six years. She stopped working because the store closed. At the time the store closed, she had work restrictions of not being allowed to lift anything over 10 pounds, no pushing and pulling, no climbing, no bending, no stooping, and no reaching high, which were imposed by Dr. Pietropaoli. She had gone to school through the 11th grade, she did not have any specialized certifications or training. She had applied for unemployment benefits and used the unemployment office's resources to look for work. When she applied for employment during the period September 25, 2014, through February 24, 2015, she did not only search for jobs within her work restrictions, but applied for anything. She had not had any job interviews since she stopped working. She took a class on resume development, but had not yet created her resume. She did not have a computer at home. She was looking into getting her G.E.D.

Claimant submitted a C-258 (Claimant's Record of Job Search Effort/Contacts) on April 1, 2015, detailing her work search efforts between September 25, 2014, and February 26, 2015.

At the conclusion of the April 7, 2015, hearing, the WCLJ noted, based on claimant's testimony, that claimant had a limited educational background and did not own a computer. The WCLJ adjourned the case to allow the claimant to submit additional proof of her work search efforts (see notice of decision filed on April 10, 2015).

On April 27, 2015, claimant filed a second C-258 with the Board detailing her work search efforts between April 8, 2015, and April 16, 2015.

At a hearing held on June 11, 2015, the claimant testified that she had begun work to obtain her G.E.D., had filed an application for ACCES-VR and had a meeting scheduled on June 18th with a vocational rehab counselor, and had completed her resume. She had searched for work by applying in-person at numerous businesses as well as on-line. She had an interview at Lowe's, but the job required lifting of 40 pounds and she was restricted to lifting no more than 15 pounds and she did not get the job. She interviewed with Bed Bath & Beyond, but the job required the ability to lift 35 pounds and she told the interviewer that she was restricted to light duty. The interviewer told her that he was unable to hire her because she could not lift 35 pounds. She was not enrolled in any ACCES-VR programs.

At the June 11, 2015, hearing claimant filed a third C-258 detailing her work search efforts between April 8, 2015, and June 9, 2015. Claimant also submitted into evidence a copy of her resume and a May 29, 2015, letter from ACCESS-VR indicating that she had a meeting with a vocational rehabilitation counselor scheduled for June 18, 2015.

At the conclusion of the June 11, 2015, hearing, the WCLJ found that the claimant had demonstrated an attachment to the labor market by searching for work that she was able to do, completing her resume, working towards obtaining her G.E.D., and reaching out to ACCES-VR. In the resulting decision filed June 16, 2015, the WCLJ found that the claimant had demonstrated an attachment to the labor market, issued awards for the period March 9, 2015, to June 11, 2015, at $218.87 per week, and continuing, and awarded attorney fees of $450.00 to the claimant's attorney.

In the carrier's application for administrative review of the notice of decision filed on June 16, 2015, it argued that claimant's lost time subsequent to March 9, 2015, was not causally related because she was released to work full duty as of October 17, 2014. The carrier argued in the alternative that the evidence the claimant produced is clearly insufficient to support a finding of attachment to the labor market.

The claimant argued in rebuttal that the WCLJ's notice of decision should be affirmed in its entirety because there were no errors of law or fact. The claimant argued that the requirements set forth in Matter of American Axle, 2010 NY Work Comp 80303659, have been satisfied.

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.).

The Board also recognizes that many job applications are now filed online or posted on internet job sites that are controlled by the employer or a posting site. An applicant using these websites to search for work typically is not provided with the evidence of an in-person job search that is required by American Axle. However, "[m]any employers and job posting sites that accept applications on line provide an e-mail confirmation and/or a reference number when an individual uses their site" (Matter of Suffolk County Health Services, 2016 NY Wrk Comp G0713095). Therefore, if the claimant has been provided with a confirmation e-mail or reference number, that information should be provided to the Board as evidence of the job search (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, claimant stopped working for reasons other than her work-related disability when she was laid off on August 26, 2014, as the result of the store where she worked closing. However, the claimant's treating physicians continued to find the claimant to be partially disabled.

The claimant credibly testified to interviewing for two jobs, based on her job search, where at the interviews it was determined that she could not meet either of the jobs' lifting requirements due to her medical restrictions. The C-258 forms filed by the claimant concerning the period in question contain the date of contact, the name of the employer, the method of contact, the telephone number or first name of the person contacted in most cases, the position applied for, and if an application was taken. The C-258 forms do not include the employers' addresses for any of the jobs which claimant applied for in person. As such, those entries do not satisfy the documentation requirements of American Axle and cannot be considered in determining whether claimant has made a diligent job search. However, claimant applied for several jobs during the period in question on-line and the C-258 forms include the reference number provided by the prospective employer for that job, consistent with Matter of Suffolk County Health Services, 2016 NY Wrk Comp G0713095.

The Full Board finds that the claimant, by her credible and convincing testimony, with accompanying documentation, showed that she made a diligent and sufficiently persistent search for work within her restrictions via an independent job search. Therefore, the Full Board finds, upon review of the record and based upon a preponderance of the evidence, that the claimant has established reattachment to the labor market and is entitled to awards for her causally related partial disability after March 9, 2015.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed June 16, 2015, is AFFIRMED. No further action is planned by the Board at this time.