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Workers' Compensation Board

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Case # 00603047
Date of Accident: 11/18/2005
District Office: Albany
Employer: MTA Bus Company
Carrier: Commerce and Industry Ins Co
Carrier ID No.: W058002
Carrier Case No.: 709-00247774
Date of Filing of Decision: 07/20/2017
Claimant's Attorney: Fine, Olin & Anderman P.C.
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 December 23, 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 was attached to the labor market as of June 7, 2016.

The Board Panel majority modified the WCLJ decision to find that the claimant is not attached to the labor market as of June 7, 2016, and suspended awards as of that date.

The dissenting Board Panel member would find that the claimant was attached to the labor market as of June 21, 2016.

The claimant filed an application for Mandatory Full Board Review on January 20, 2017, arguing that he has performed an adequate job search per American Axle (2010 NY Wrk Comp 80303659) and is attached to the labor market.

The carrier filed a rebuttal on February 13, 2017, contending that the decision of the Board Panel majority that the claimant was not attached to the labor market was supported by the preponderance of the evidence in the record, contains no errors of fact or law, and must be affirmed.

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

FACTS

This case is established for a work-related injury to the back and neck as well as a consequential adjustment disorder based on an accident that occurred on November 18, 2005, when claimant, a bus driver, was involved in a work-related motor vehicle accident. Claimant commenced a third-party action seeking damages for the injuries sustained in the accident which was settled with the carrier's consent in June 2015, with a net recovery to claimant of $417,934.80.

A Form C-4.3 (Doctor's Report of MMI/Permanent Impairment) was filed with the Board on March 23, 2016, by Dr. Hussein, the claimant's pain management doctor. The doctor indicated that the claimant had reached maximum medical improvement (MMI) and could perform light work. The doctor indicated that the claimant could never climb, kneel, or operate machinery; occasionally stand, walk, and sit; frequently lift/carry up to ten pounds and pull/push up to five pounds; and constantly grasp, engage in fine manipulation, reach overhead, and handle temperature extremes. No indication was given as to how many hours a week the claimant could work.

In a notice of decision filed on May 24, 2016, the WCLJ classified the claimant with a permanent partial disability and a 65% loss of wage earning capacity. The WCLJ issued awards for the period February 8, 2012, to May 19, 2016, at the temporary partial disability rate of $400.00 per week, and payment continuing at $347.00 per week. Attorney fee awards were issued to Fine, Olin in the amount of $ 2,470.00 and to Pasternack et al. in the amount of $1,000.00. The case was continued on the issue of labor market attachment.

A Form C-258 (Claimant's Record of Job Search Efforts/Contacts) was filed with the Board on July 8, 2016. The claimant indicated that he applied for five jobs between May 20, 2016, and July 7, 2016, either in person or by telephone. The claimant provided the date of contact, the employer's name and address, the method of contact, the name or the name and telephone number of the person contacted, and that he applied for light duty jobs. The claimant also indicated that he went to the Department of Labor (One Stop) on June 21, 2016, and again on June 22, 2016, for career guidance, and that he went to ACCES-VR on July 1, 2016.

On July 19, 2016, claimant submitted a copy of a letter from One Stop dated June 21, 2016, which indicated that on that date claimant registered with One Stop, underwent an orientation, submitted his resume to "Job Zone," made an appointment with a counselor for carrier guidance and counseling, and was referred to ACCESS-VR.

At a hearing on July 19, 2016, the claimant testified that he had been performing a work search since the last hearing on May 19, 2016. He had registered with the Department of Labor on June 21, 2016, went back the following day for career counseling, receives weekly emails about available work, but had not found any job that was within his abilities. He also testified that he had registered with ACCES-VR on July 1, 2016, went there for an orientation seminar, and was planning to follow up with them. He searched for work in person by stopping in business locations to see if they had positions open, answered a newspaper ad, looked at the hudsonvalley.com website for jobs, and looked at the Department of Labor's weekly emails. He did not apply to any of the jobs emailed to him by the Department of Labor because they were all full-time jobs and per his doctor he was limited to light duty work up to 20 hours per week. The claimant testified that he had not filled out any employment applications during his work search.

At the conclusion of the hearing held on July 19, 2016, the WCLJ found that the claimant was attached to the labor market as of June 7, 2016, and did not use May 20, 2016, the date of the first job contact listed on Form C-258, because the claimant was physically unable to do the work at a contracting/landscaping company where he inquired about light-duty work. The WCLJ found that the claimant was making a diligent effort as of June 7, 2016, because he was searching the husonvalley.com website for jobs, he was being sent emails by the Department of Labor, and he registered with ACCESS-VR. The WCLJ found the proper rate pursuant to Burns v Varriale, 9 NY3d 207 [2007], to be $116.79 per week and directed the carrier to release the previously awarded attorneys' fees per the May 24, 2016, notice of decision. These findings were memorialized in a notice of decision filed on July 22, 2016.

In the carrier's applications for administrative review of the notice of decision filed on July 22, 2016, it argued that the claimant had not conducted a sufficient job search and the decision must be rescinded because the claimant did not show a good faith effort to seek employment within his restrictions.

The claimant argued in rebuttal that his work search was sufficient per American Axle and the WCLJ's July 22, 2016, decision should be affirmed in its entirety.

LEGAL ANALYSIS

Attachment to the labor market can be demonstrated by credible documentary evidence showing that the 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.).

Here, the evidence fails to establish that the claimant has attached to the labor market through his independent job search. The corroborating documentary evidence needed for an independent job search must verify a timely, diligent, and persistent outreach to potential employers for work within a claimant's medical restrictions in order to constitute credible evidence upon which to find an attachment to the labor market. The claimant testified that he searched for work in person by stopping in business locations to see if they had positions open, but admitted that he did not fill out any job applications during his job search. The claimant also was only looking for work up to twenty hours per week; however, a review of the record does not indicate that he had been restricted to part-time work. The substantial evidence in the record supports that the claimant did not satisfy the criteria for showing reasonable efforts through an independent job search to find work within his limitations. Thus, the evidence in the record is insufficient to show labor market attachment based on claimant's independent job search.

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.).

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]).

Here, claimant went to orientation at ACCES-VR on July 1, 2016, went to orientation at One Stop on June 21, 2016, went to career guidance/counseling at One Stop on June 22, 2016, and was receiving Department of Labor's weekly job emails. He also credibly testified that he intended to follow up with ACCESS-VR. This demonstrates active participation with One Stop and ACCESS-VR.

Therefore, the Full Board finds that the preponderance of the evidence supports a finding that claimant reattached to the labor market on June 21, 2016.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed July 22, 2016, is AFFIRMED. No further action is planned by the Board at this time.