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Workers' Compensation Board

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Case # G0290309
Date of Accident: 09/14/2009
District Office: NYC
Employer: Warburg Home of the
Carrier: NYAHSA Services Inc
Carrier ID No.: W537757
Carrier Case No.: 25-109-27884
Date of Filing of Decision: 02/27/2017
Claimant's Attorney: Freedman Wagner Tabakman & Weiss
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

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 February 2, 2016.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether the claimant properly served his application for administrative review on the group self-insured trust (GSIT); and,
  2. whether the claimant is entitled to reduced earning awards.

The Workers' Compensation Law Judge (WCLJ) found that the claimant was not entitled to an award of reduced earnings based on credible medical evidence and testimony.

The Board Panel majority modified the WCLJ's decision to find that claimant had reattached to the labor market when he returned to the labor force by obtaining a job consistent with his partial disability, but held the issue of reduced earnings in abeyance pending development of the record, and continued the case.

The dissenting Board Panel member would find the claimant had not met the burden of showing his loss of earnings was causally related to his disability.

In its application for Mandatory Full Board Review, the GSIT argues that it was not properly served with the claimant's application for administrative review of the WCLJ's decision, and therefore the Board Panel's decision should be rescinded and review denied. In the alternative, the GSIT argues that the WCLJ's finding that the claimant is not entitled to an award of reduced earnings should be affirmed.

The claimant argues in rebuttal that the application for administrative review was copied to Glacier Bay, the third-party administrator for the GSIT. The claimant also argues that the GSIT was not prejudiced because the Board Panel decision did not do anything but continue the case on the issue of awards.

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

FACTS

On September 14, 2009, claimant slipped and fell in the kitchen of the nursing home where he worked, sustaining multiple injuries. This claim is initially established for injuries to the claimant's head, back, left elbow, right hip, and later amended to include exacerbation of pre-existing migraines. The claimant's average weekly wage was set at $724.45 and awards were made at various rates. The claimant was found to have no compensable lost time from work as of April 14, 2013 (see notice of decision filed April 19, 2013).

The claimant's treating physician, Dr. Rahman, in a report dated December 3, 2013, found that the claimant had a 25% temporary partial mild disability and may work with restrictions of no lifting more than 20 pounds and no acute bending.

Dr. Schulman, the GSIT's consulting Board certified orthopedic surgeon, filed a Form IME-4 (Practitioner's Report of Independent Medical Examination) with the Board on August 8, 2014. The doctor found that the claimant had a mild to moderate disability of the low back.

On October 13, 2014, the claimant filed an RFA-1LC form (Request for Further Action by Legal Counsel) requesting a hearing on the issue of causally related reduced earnings.

By a decision filed February 6, 2015, the claimant was found to have no compensable lost time from April 17, 2013, to April 23, 2014. Awards from April 23, 2014, were held in abeyance for possible reduced earnings and the case was continued for development of the record on that issue.

The claimant testified at a hearing on April 16, 2015, that he had been fired by the employer on August 7, 2013, for alleged insubordination. He received unemployment benefits until he got a new job as a valet attendant at a casino. He informed potential employers that he could not "lift anything because of his back problem" (transcript, 4/16/15 hearing, p. 5). His valet job did not involve lifting. The only job that he applied for was a job with the casino. If he had not been fired, he would have continued to work for his former employer. He works part time, 20 to 26 hours per week, and has not looked for a second job. After the claimant's testimony, the WCLJ concluded that no awards were warranted "based on the testimony and the credible medical evidence" (id., p. 24).

In a notice of decision filed on April 21, 2015, the WCLJ found that the GSIT was precluded from producing a lay witness on the issue of reduced earnings, but that "claimant is not entitled to an award of reduced earnings based on credible medical evidence and testimony."

The claimant sought administrative review of the WCLJ's decision, arguing that the WCLJ failed to articulate her rationale for declining to make awards and asked that the WCLJ's decision be rescinded and the matter returned to the WCLJ "to make an actual finding in this matter."

The GSIT did not file a timely rebuttal.

LEGAL ANALYSIS

Proper Service of Application for Administrative Review

At the time the claimant's application for administrative review was filed, 12 NYCRR 300.13(a) provided that "An application to the board to review a decision of a Workers' Compensation Law Judge shall be in writing and shall be accompanied by a cover sheet form prescribed by the chair... Such application shall be filed with the Board within 30 days after notice of filing of the decision of the Workers' Compensation Law Judge together with proof of service upon all other parties in interest." It is well settled that the application for review must be served on all parties to the proceeding and that the Board is bound by the service requirements of 12 NYCRR 300.13(a) (see Matter of Vukel v New York Water & Sewer Mains, 94 NY2d 494 [2000]; Matter of Faello v Federal Express, 34 AD3d 942 [2006]). The Board has discretion to suspend this requirement in some instances (12 NYCRR 300.30; Matter of Greenough v Niagara Mohawk Power Corp., 45 AD3d 1116 [2007]). However, the Board does not have discretion to suspend the requirement when a required party has received no notice.

Here, the claimant's employer was a member of the group self-insurance trust, NYAHSA Services, Inc. (NYAHSA). NYAHSA's address is listed in the Board's records concerning this matter as "NYASHA Services, Inc. c/o Glacier Bay TPA LLC, PO Box 2070, Latham, NY 12110." In addition, the notice of decision filed on April 21, 2015, did not list NYAHSA as a recipient, but did list Glacier Bay TPA. If NYAHSA had used a separate address and the claimant had still used Glacier Bay's address to serve his application for review on the GSIT, it would not have been proper service (see Matter of Faello v Federal Express, 34 AD3d 942 [2006]). However, in this matter, NYASHA's address of record was "c/o Glacier Bay."

Therefore, the Full Board finds that the claimant complied with the service requirements of 12 NYCRR 300.13(a), and his application for review of the WCLJ's decision filed on April 21, 2015, will be considered.

Reduced Earning Awards

To be entitled to awards, a partially disabled claimant who is working must show that any reduced earnings are causally related to his or her disability (Matter of Florentino v Mount Sinai Med. Ctr., 126 AD3d 1279 [2015], citing Matter of Launer v Euro Brokers, 115 AD3d 1130 [2014]).

Here, the claimant testified that he would have continued to work for his former employer, doing the same job and performing the same duties, had he not been fired for alleged insubordination. He was currently employed part time as a valet attendant at a casino. The job at the casino was the only one he had applied for and he had not looked for any other employment since starting the valet job. He testified that he told potential employer's that he could not "lift anything because of his back problem," while the medical evidence indicates only that Dr. Rahman had imposed a 20 pound lifting restriction in December 2013. A review of the record indicates that there is no medical evidence restricting the claimant to part-time work.

The Full Board finds, upon review of the record and based upon a preponderance of the evidence, that the claimant has not met his burden of showing that his reduced earnings are causally related to his disability.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed April 21, 2015, is AFFIRMED. No further action is planned by the Board at this time.