Skip to Content

Workers' Compensation Board

Language Assistance: (877) 632-4996 | Language Access Policy

 


Case # 09411695
Date of Accident: 10/06/1997
District Office: NYC
Employer: Con Edison
Carrier: Consolidated Edison Co of NY
Carrier ID No.: W373005
Carrier Case No.: 8178414492000101784
Date of Filing of Decision: 02/27/2017
Claimant's Attorney: Cascione Purcigliotti & Galluzzi
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

* This decision also pertains to the following case(s): 09930849.

The Full Board, at its meeting held on January 24, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on September 8, 2016.

ISSUE

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

The Workers' Compensation Law Judge (WCLJ) found that the claimant remained attached to the labor market.

The Board Panel majority reversed the WCLJ's decision and found that the claimant was not attached to the labor market after January 1, 2014, and continued the case for development of the record on the issue of total industrial disability.

The dissenting Board Panel member would find that the claimant is attached to the labor market and would continue the case for development of the record on the issue of the nature, scope and causal relationship for the claimant's current disability.

In his application for Mandatory Full Board Review filed October 4, 2016, the claimant asserts that he is now seventy-nine years old and has maintained an attachment to the labor market by way of working for a realtor's office and maintaining rental properties in Florida.

The self-insured employer (SIE) filed a rebuttal on October 28, 2016, asserting that the Board Panel majority's finding should be adopted.

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

FACTS

This claim (WCB #09411695) is established for an occupationally related asbestosis pleural disease. The average weekly wage for the year before the October 6, 1997, date of disablement was set at $1,400.00. The claimant was classified with a mild permanent partial disability (PPD) from this occupational disease in the August 2, 2001, reserved decision.

Claimant also has an established claim for work-related injuries to the back, left leg and left foot (WCB #09930849). The average weekly wage for the year before the May 4, 1999, accident was set at $1,400.80.

Both this claim and WCB #09930849 are the liability of the SIE. By a decision filed August 23, 2004, in WCB #09930849, claimant was classified PPD and the SIE was directed to continue payments at the reduced earnings rate of $100.00 per week. In a decision filed August 23, 2004, in this claim (WCB #09411695), the SIE was directed to continue payments at the reduced earnings rate of $300.00 per week.

In 2013, the SIE filed RFA-2s (Request for Further Action by Carrier/Employer), requesting that these claims be reopened to consider claimant's ongoing entitlement to reduced earnings benefits. The Board Panel, by a decision filed September 25, 2014, directed that these claims be remitted to the trial calendar for development of the record on the issues of labor market attachment and reduced earnings.

The claimant testified at a hearing on May 11, 2015, that he forwards a copy of his tax return to the SIE every year. He has been working for a real estate office since 2001. His job required him to "show houses and list houses and take clients around" (transcript, 5/11/15 hearing, p. 5). He has not been going to work lately because of health problems, including arterial fibrillation, "high blood pressure, sleep apnea, bad legs, knees. I can't walk too far. I start breathing heavily. I start to get shortness of breath" (p. 6). He might be able to go into the office and work, but he was unsure "how long I would last" (id.). The last time he derived any income from his job as a realtor was in 2012. In 2014 he had an enlarged prostate that had to be removed, as well as sleep apnea and high blood pressure, which required him to go back and forth to doctors frequently. He is 78 years old. He tried to go into the office in 2013 and 2014, but was unable to. He did list his daughter's house in October 2014, and the house closed in January 2015. Prior to listing his daughter's house, he had not done any work since 2012, and had not performed any work since her house closed. He owns several rental properties in Florida, and when problems arise with the properties, he takes care of them by hiring someone to do necessary repairs.

At the May 11, 2015, hearing, the carrier conceded that the claimant was attached to the labor market and entitled to awards through 2013, but argued that he should be found not to be attached to the labor market as of January 1, 2014.

By a reserved decision filed December 3, 2015, the WCLJ found that the claimant was sufficiently attached to the labor market and was therefore entitled to continuing awards.

The carrier requested administrative review of the WCLJ's reserved decision.

LEGAL ANALYSIS

Attachment 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; 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; 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.).

In this case, claimant has been classified permanently partially disabled. The claimant admitted that other than listing his daughter's house in October 2014 and closing on the house in January 2015, he has done no work and derived no income as a realtor since 2012. Nor has he testified to any other attempts to work or obtain work during that time. Also, the income claimant earns from his rental properties is clearly profit from his investment, rather than earnings for services performed, and cannot therefore support a reduced earnings award.

Claimant has not been found to have a total industrial disability, nor has there been a finding of a change in circumstances requiring a reclassification with a total disability. This being the case, the claimant has an obligation to remain attached to the labor market, which the evidence clearly shows he did not.

Therefore, the Full Board finds that the preponderance of the evidence supports a finding that the claimant was not attached to the labor market after January 1, 2014.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed December 3, 2015, is REVERSED to find that the claimant was not attached to the labor market as of January 1, 2014. The case is continued.