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Workers' Compensation Board

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Case # 50410668
Date of Accident: 07/07/2004
District Office: Albany
Employer: City of Albany Fire Dept.
Carrier: Albany City of
Carrier ID No.: W801005
Carrier Case No.: COA204321
Date of Filing of Decision: 08/24/2017
Claimant's Attorney: Buckley Mendleson Criscione & Quinn, PC
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on July 18, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed January 11, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant's reduced earnings for the period after April 11, 2016, are causally related to his established back claim.

The Workers' Compensation Law Judge (WCLJ) found that the claimant was entitled to reduced earnings awards of $400.00 per week.

The Board Panel majority disagreed and rescinded awards.

The dissenting Board Panel member would affirm the WCLJ.

The claimant filed an application for Mandatory Full Board Review on February 3, 2017, arguing that the Board Panel majority decision is erroneous as a matter of law and should be reversed because the claimant had actual earnings.

The carrier filed a rebuttal on March 3, 2017, asserting that the Board Panel properly found that the claimant had failed to show any nexus between his disability and his reduction in earnings.

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

FACTS

This case involves an established back claim resulting from a work-related accident that occurred on July 7, 2004. The claimant's average weekly wage has been set at $932.29. Prior to the hearing held on August 1, 2016, the claimant had previously been found by the Board to have voluntarily withdrawn from the labor market as of July 1, 2015 (see Notice of Decision filed 5/28/15; Notice of Decision filed 10/29/15, as modified by Memorandum of Board Panel Decision filed 02/08/16). No finding of permanency has been made.

Dr. Soyer, the carrier's consulting Board certified orthopedic surgeon, filed an IME-4 (Practitioner's Report of Independent Medical Examination) with the Board on December 21, 2015. The doctor found that the claimant had a marked (75%) disability and was capable of returning to work in a sedentary capacity with the restriction of no lifting over 5 pounds.

Dr. Rigolosi, the claimant's treating physician, has found during the relevant period that claimant had a marked (75%) temporary partial disability.

The claimant testified at a hearing held on August 1, 2016, that he was working part-time for an employer as a salesman for a wooden boat manufacturer. He started working for the employer on April 11, 2016, and his job duties include telephoning potential clients and handing out flyers. He earns $10 per hour and works 5 hours per week. He was working 5 hours per week because that was what was available and he was not looking for work anywhere else. He works only 5 hours per week due to the poor state of the economy. He works from home, but does not keep any written records of the hours he works. The claimant testified that his physician, Dr. Rigolosi, as well as the carrier's IME, limited him to part-time employment. The claimant's paycheck did not have any taxes taken out. The claimant also testified that he is an independent contractor.

At the conclusion of the hearing, the WCLJ found that the claimant was entitled to reduced earnings awards of $400.00 per week based on his credible testimony and because he was working with a significant disability. These findings and awards are reflected in a notice of decision filed on August 5, 2016.

In its application for administrative review, the carrier argued that the WCLJ decision should be reversed because the claimant failed to show any nexus between his disability and his reduction in earnings.

The claimant argued in rebuttal that the WCLJ decision should be affirmed in its entirety.

LEGAL ANALYSIS

"Whether claimant's injuries caused reduced earnings is a factual issue within the province of the Board to determine...Notably, a claimant's work-related permanent partial disability allows an inference that a subsequent loss of wages is attributable to physical limitations. While a reduced earnings award may be denied where the reduction in earning capacity results from age, economic conditions or other factors unrelated to the disability, such an award will not be disturbed absent proof that the reduction was solely due to such unrelated factors" (Matter of Coyle v Intermagnetics Corp., 267 AD2d 621 [1999] [internal quotation marks and citations omitted]).

In Matter of Smith v Consolidated Edison Co. of N.Y., Inc., (68 AD3d 1299 [2009]), claimant, who had previously been found to have withdrawn from the labor market, sought reduced earnings benefits based on his employment as a crossing guard two to three hours per week. The Board awarded claimant reduced earnings benefits, but the employer appealed to the Appellate Division, Third Department, and the court reversed and rescinded awards, finding that claimant,

was required to demonstrate that his earning capacity and his ability to find comparable employment had been adversely affected by his disability. In that regard, claimant presented no evidence that his ability to earn an income had been reduced because he was disabled. In fact, he failed to demonstrate that other factors totally unrelated to his disability did not have an adverse affect on his earning capacity, and acknowledged that his limited work schedule is dictated by his employer's needs and not by his disability.

Matter of Smith (68 AD3d 1299 [2009][internal citations omitted]).

Here, the claimant testified that he was working 5 hours per week and that both Dr. Rigolosi and Dr. Soyer restricted him to part-time employment. A review of the record in this matter indicates there is no medical opinion restricting the claimant to only performing part-time work. The only medical restrictions imposed on the claimant involve lifting. In addition, the claimant testified that his limited work hours were all that his employer had available. As in Smith, the record here supports a finding that claimant's limitation to part-time work, and resulting reduced earnings, was dictated by his employer and by economic conditions, rather than by his work-related disability.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant's reduced earnings are not causally related to his established back injury, and that he is not currently entitled to reduced earnings awards.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed August 5, 2016, is MODIFIED to rescind awards, to find that claimant had no causally related lost time from April 11, 2016, to August 1, 2016, and to rescind the attorney's fee of $450.00. No further action is planned by the Board at this time.