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Workers' Compensation Board

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Case # G0531226
Date of Accident: 12/20/2011
District Office: Rochester
Employer: Rochester City School District
Carrier: Rochester City School District
Carrier ID No.: W862007
Carrier Case No.: 670182998
Date of Filing of Decision: 02/27/2017
Claimant's Attorney: Vincent J. Criscuolo & Associates
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on January 24, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed July 12, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the self-insured employer (SIE) has provided sufficient supporting evidence upon which to reopen the claim to consider the issue of labor market attachment.

In a notice of decision filed on March 10, 2016, the Workers' Compensation Law Judge (WCLJ) made awards, directed the SIE to continue payments at the rate of $175.00 per week, directed the claimant to produce a job search record every 45 days, and found that no further action was planned by the Board.

The SIE filed an RFA-2 (Employer's Request for Further Action) on May 26, 2016, requesting that the claim be reopened to consider the issue of labor market attachment.

The Board Panel majority denied the SIE's application to reopen and modified the WCLJ's decision filed March 10, 2016, to rescind the direction that the claimant produce evidence of a work search every 45 days.

The dissenting Board Panel member would grant the SIE's request for reopening because the issues of labor market attachment and causally related loss of earnings were raised at the hearing on March 7, 2016, and the SIE properly requested further development of the record.

The SIE filed an application for Mandatory Full Board Review on August 11, 2016.

The claimant filed a rebuttal on September 12, 2016.

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

FACTS

This claim is established for back, left ankle, left hip strain, both legs and both knees resulting from a December 20, 2011, accident. The claimant's average weekly wage has been set at $525.00.

In a reserved decision filed on February 11, 2016, the WCLJ classified the claimant with a permanent partial disability and a 50% loss of wage earning capacity. The SIE sought administrative review of that decision and the Board Panel ultimately found that claimant had a 35% loss of wage earning capacity (Memorandum of Decision filed on June 15, 2016).

In a notice of decision filed on March 10, 2016, the WCLJ made awards and directed the SIE to continue payments at the rate of $175.00 per week. The WCLJ directed the claimant to produce a job search record every 45 days, and directed the carrier to recoup its overpayment at $10.00 per week. The WCLJ noted that the carrier raised the issue of labor market attachment and that no further action was planned by the Board.

The SIE filed an RFA-2 (Employer's Request for Further Action) on May 26, 2016, requesting that the claim be reopened to consider the issue of labor market attachment because the claimant had failed to provide evidence of a job search every 45 days, as directed in the WCLJ's March 10, 2016, decision. The SIE submitted no documentary evidence to support its request to reopen.

The claimant filed an objection to the request for reopening arguing that she is classified with a permanent partial disability and is entitled to a rebuttable inference that her diminution in earnings is causally related to her compensable injuries. The claimant argued that the SIE's request for reopening be denied pursuant to 12 NYCRR 300.23(c)(1) and the Board's holding in Matter of Colonial Fire Protection, 2015 NY Wrk Comp 70600111, and other cases.

LEGAL ANALYSIS

After a claimant is classified with a permanent partial disability and is found to be attached to the labor market, the claimant is not required to submit periodic documentation of attachment to the labor market absent the carrier submitting a request to suspend benefits pursuant to 12 NYCRR 300.23(c)(1), along with proof that the claimant has withdrawn from, or is no longer attached to, the labor market (Matter of Verizon Communications, 2016 NY Wrk Comp G0694921).

Here, as a permanency finding was made in the decision filed on February 11, 2016, the case is subject to 12 NYCRR 300.23(c)(1). In addition, the case had been marked for no further action with a direction for the SIE to continue awards. A review of the record indicates that the SIE has not cited to or submitted any evidence, but has merely requested a hearing on the issue of the claimant's failure to submit documentation of attachment to the labor market. In addition, the direction to the SIE to continue payments implies that there was a finding that claimant was attached to the labor market at the time of classification. When a WCLJ makes a finding that the claimant was attached to the labor market at the time of classification, the burden falls upon the self-insured employer to produce evidence that the claimant has withdrawn or is no longer attached to the labor market in order to justify a suspension of benefits (see Matter of Colonial Fire Protection, 2015 NY Wrk Comp 70600111; Matter of Auburn Correctional Facility, 2014 NY Wrk Comp 60604814).

In the present case, the carrier's RFA-2 fails to allege facts, which, if true, would raise an issue of fact that the claimant's reduction in wage earning capacity post-classification was due to causes other than the disability, or that claimant has withdrawn or is no longer attached to the labor market.

Therefore, the Full Board finds that the carrier's supporting evidence is insufficient to warrant reopening the case on the issue of suspension of continuing permanent partial disability benefits at this time.

Further, once a claimant is classified permanently partially disabled, the burden is squarely on the SIE to establish that claimant is no longer entitled to benefits because she has failed to remain attached to the labor market. Therefore, there was no basis for the WCLJ to direct that the claimant produce evidence of a work search every 45 days.

CONCLUSION

ACCORDINGLY, based upon a review of the forms RFA-2 and a preponderance of the evidence in the record, the SIE's application to reopen is DENIED. The WCLJ decision filed March 10, 2016, is MODIFIED to rescind the direction that the claimant is to produce evidence of a work search every 45 days. No further action is planned by the Board at this time.