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Workers' Compensation Board

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Case # G0705843
Date of Accident: 04/10/2013
District Office: Albany
Employer: Lewis Tree Service Inc
Carrier: Indemnity Ins. of N America
Carrier ID No.: W112502
Carrier Case No.: C494C3277065
Date of Filing of Decision: 07/19/2017
Claimant's Attorney: Irwin Silverman Esq.
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on June 20, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed October 27, 2016.

ISSUE

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

The Workers' Compensation Law Judge (WCLJ) found that the claimant had voluntarily removed himself from the labor market.

The Board Panel majority modified the WCLJ decision and found that the claimant was attached to the labor market as of the May 19, 2016, hearing date and was entitled to further wage replacement benefits.

The dissenting Board Panel member would affirm the WCLJ decision.

The carrier filed an application for Mandatory Full Board Review on November 1, 2016, arguing that claimant has not remained attached to the labor market by engaging in a timely, diligent, and persistent search for employment within his physical restrictions.

The claimant did not file a timely rebuttal.

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

FACTS

This case is established for injuries to the claimant's neck, back, and right shoulder that were the result of a work-related accident which occurred on April 10, 2013. The claimant's average weekly wage was set at $1,136.20.

By a decision filed September 28, 2015, the Board Panel directed that benefits continue at the tentative partial disability rate of $568.10 per week. The carrier filed a Form RFA-2 (Request for Further Action by Carrier/Employer) on February 18, 2016, requesting that benefits be suspended because claimant was not attached to the labor market.

At the hearing held on April 5, 2016, the claimant was directed to produce evidence of labor market attachment, and the case was continued to May 19, 2016, for claimant's testimony.

During the period in question, claimant's treating physician, Dr. Cabatu, consistently indicated in his treatment reports that claimant was restricted from lifting. In a May 18, 2016, narrative report, claimant's treating neurologist, Dr. Jacobs, noted that claimant "is unable to lift." The carrier's consultant, Dr. Wiener, examined claimant on March 28, 2016, and found that claimant had "a moderate to marked (67%) temporary partial disability," and that it was "premature to provide a permanency determination for the claimant."

On April 5, 2016, claimant submitted documentation of his work search efforts consisting of a C-258 (Claimant's Record of Job Search Efforts/Contacts) and a letter from One Stop dated December 1, 2015. The C-258 lists 24 contacts with potential employers between November 23, 2015, and January 22, 2016. Most of the entries include the name, address and phone number of the employer, but only five list the name of the person contacted. All of the entries list "any light duty jobs" as the position applied for, and claimant indicated that he submitted applications with all but two of the potential employers contacted; however, none of the entries on the C-258 indicate the result of the contact. The letter from One Stop indicates that on December 1, 2015, claimant registered at One Stop, underwent an initial assessment and orientation, and was referred to an ESL class at Boces.

At the hearing on May 19, 2016, claimant produced additional documentation of his work search efforts which include a second C-258, an April 22, 2016, letter from Orange County Community College, and letters from One Stop dated April 22, May 6, and May 13, 2016 (document #264981216). The C-258 lists 25 contacts with potential employers between April 11, 2016, and May 11, 2016. The entries all list the name, address and telephone number of the employer, but none list the name of the person contacted. All of the entries list "any light duty jobs" as the position applied for, and indicate that claimant submitted an application, but that no light duty work was available. The letter from Orange County Community College indicates that claimant was enrolled in a Level 2 ESL class beginning May 23, 2016, consisting of two three-hour classes per week. The April 22, 2016, letter from One Stop indicates that on that date, claimant received services including: initial assessment to determine job readiness and create a reemployment plan; resume submission to SMART 2010 (Skills Matching and Referral Technology); job search planning assistance; job referrals/job matching assistance; career guidance/counseling; individual employment plan; and, job referral to Dairy Queen seeking reasonable accommodations. The May 6, 2016, letter from One Stop indicates that on that date, claimant received: job search planning assistance and referral to a May 18, 2016, job fair at the Galleria Mall. The May 13, 2016, letter from One Stop indicates that on that date, claimant received job search planning assistance and a referral to ACCESS-VR.

At a hearing on May 19, 2016, the claimant testified with the assistance of a Spanish language interpreter. He first went to the Labor Department (One Stop) for orientation on November 23, 2015, but was unable to get any documentation from One Stop confirming his visit. At his initial visit at One Stop it was recommended that he take English (ESL) classes. He has attended ESL classes for two years. He went to One Stop on April 22, May 6, and May 13, 2016. At One Stop he was given an orientation and shown how to search for jobs using the computer. He used the information provided by One Stop to look for work using the internet and to apply for jobs online. The employers he contacted did not have light duty positions available. He submitted an application to Dairy Queen after being referred there by One Stop, but has not received a response. The potential employers he contacted did not advertise light duty positions and he did not know if they had any light duty positions available when he contacted them. He advised the employers that he was seeking a light duty position. He identified the employers who he contacted through the Department of Labor. He did not list the name of the person contacted at each employer because he "got customer service where they don't give you their name or last name" (transcript, 5/19/16 hearing, p. 11).

At the conclusion of the hearing on May 19, 2016, the WCLJ found that the claimant was not attached to the labor market because his job search was not sufficient and diligent. The WCLJ found that the claimant's English classes did not qualify as attending school full-time and the claimant's attendance at Work Force One for orientation on four dates did not qualify as a work search. The findings made at the May 19, 2016, hearing are reflected in a notice of decision filed on May 24, 2016.

In the claimant's application for review of the notice of decision, filed on June 2, 2016, he argued that the WCLJ decision should be reversed based upon his diligent and persistent job search, his participation with One Stop Center, and attendance at an ESL class at Orange County Community College.

The carrier argued in rebuttal that the WCLJ decision should be affirmed.

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. "If such documentation is not available, the claimant must, at a minimum, document the date he or she made the online application, the position applied for, and the name of the site they used" (Suffolk County Health Services, 2016 NY Wrk Comp G0713095).

Active participation at a One-Stop Career Center means calling for an appointment, attending an orientation session; meeting with a One-Stop counselor to develop a resume, registering a resume in the One-Stop system, maintaining contact with the One-Stop Career Center to determine whether there were any job matches, and following up on all job referrals and matches (id.).

Here, claimant has produced documentation that he went to One Stop on December 1, 2015, and April 22, May 6, and May 13, 2016. On December 1, 2015, he underwent initial assessment and orientation at One Stop and was referred to an ESL class, in which claimant subsequently enrolled. In subsequent visits to One Stop, claimant received services including: initial assessment to determine job readiness and create a reemployment plan; resume submission to SMART 2010 (Skills Matching and Referral Technology); job search planning assistance; job referrals/job matching assistance; career guidance/counseling; individual employment plan; and, referral to ACCESS-VR. Claimant testified he identified potential employers via the internet as he was instructed by One Stop, and submitted applications to numerous potential employers as reflected in his two C-258s forms. These efforts clearly satisfy the requirements of American Axle.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant has shown attachment to the labor market through his active participation with One Stop.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed May 24, 2016, is MODIFIED to find that claimant was attached to the labor market as of the May 19, 2016, hearing date and to direct the carrier to pay awards from May 20, 2016, forward at the tentative rate of $568.10 per week. The case is continued.