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Case # G0977362
Date of Accident: 09/14/2013
District Office: Albany
Employer: Component Assembly Systems Inc.
Carrier: Zurich American Insurance Co.
Carrier ID No.: W228001
Carrier Case No.: 2440169255
Date of Filing of Decision: 04/13/2017
Claimant's Attorney: Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on March 21, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed October 24, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is the proper date for suspending benefits after the claimant was found not to be attached to the labor market.

The Workers' Compensation Law Judge (WCLJ) found that the claimant's benefits should be suspended on July 9, 2015, the date that the carrier raised the issue of labor market attachment.

The Board Panel majority amended the WCLJ decision to suspend benefits as of May 5, 2016, the date of the hearing at which the WCLJ made a finding that the claimant could not rely on his doctor's medical opinion of a total disability anymore.

The dissenting Board Panel member would find that the claimant's benefits should have been suspended on September 11, 2015, the date of the hearing at which the carrier objected to the continuing awards and subsequently applied for administrative review of the WCLJ decision.

The carrier filed an application for Mandatory Full Board Review on November 2, 2016, arguing that the dissenting Board Panel member's opinion should be adopted and awards suspended after September 11, 2015.

The claimant filed a rebuttal on December 1, 2016, arguing that the Board Panel majority's opinion of no attachment as of the May 5, 2016, hearing, should be affirmed.

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

FACTS

This case is established for a work-related right knee injury. The average weekly wage for the year before the September 14, 2013, accident was set at $2,104.05.

At a hearing on July 9, 2015, the WCLJ made awards form March 5, 2015, to July 9, 2015, and continuing at the temporary partial rate of $701.35 per week. The carrier raised the issue of labor market attachment during the July 9, 2015, hearing and the case was continued for the claimant's testimony on labor market attachment. The awards and findings made at the July 9, 2015, hearing are reflected in a decision filed July 15, 2015.

At a hearing on September 11, 2015, it was noted that claimant was scheduled to undergo right knee surgery on October 8, 2015. The WCLJ found that based on claimant's anticipated surgery, the issue of labor market attachment was not "ripe," and indicated that the issue would be revisited after claimant recovered from the surgery. The WCLJ directed the carrier to continue payments at the temporary partial rate of $701.35 per week, and to increase awards to the total disability rate "upon receipt of the operative report" (Notice of Decision filed September 16, 2015).

The carrier applied for administrative review of the WCLJ's direction to continue payments after September 11, 2015. The Board Panel, in a decision filed April 29, 2016, ultimately affirmed the WCLJ's September 16, 2015, decision, finding the carrier's application was "premature pending testimony on the issue" of labor market attachment.

After the matter was adjourned at the September 11, 2015, hearing several subsequent hearings were held at which the matter was again adjourned without claimant's testimony. At a hearing on November 30, 2015, the WCLJ directed the carrier to produce an independent medical exam (IME) on the issue of degree of disability at or before the next hearing, or risk waiving the opportunity to do so (Notice of Decision filed December 3, 2015). At a hearing on July 27, 2016, the WCLJ directed both parties to summit medical evidence on the issue of permanency and held the issue of labor market attachment in abeyance (Notice of Decision filed February 1, 2016). At a hearing on March 27, 2016, the WCLJ directed the parties to depose claimant's treating physician and the carrier's IME and continued the case to May 5, 2016, for claimant's testimony on labor market attachment and loss of earning capacity (Notice of Decision filed March 22, 2016).

Claimant's treating physician, Dr. Barbera, was deposed on December 29, 2014, and April 25, 2016. During the December 29, 2014, deposition, Dr. Barbera testified that the claimant was totally disabled from his work in construction. On cross-examination, the doctor admitted that the claimant was capable of sedentary work. On re-direct examination the doctor testified that the claimant has a marked partial disability from all work with restrictions against bending, lifting, climbing or crawling. On April 25, 2016, Dr. Barbera testified that the claimant is waiting for his diabetes to become controlled before a right total knee replacement surgery is performed. If the claimant does not have surgery, then he is at maximum medical improvement. Without surgery, the claimant is permanently disabled from all but sedentary work.

The carrier's IME, Dr. Jones, was deposed on April 26, 2016, and testified that he examined the claimant on December 7, 2015, and March 14, 2016. During the December 7, 2015, examination, Dr. Jones found a moderate partial disability from the symptomatic osteoarthritis in claimant's right knee. The doctor testified that the claimant can perform more than sedentary work because he can ambulate without a cane. The claimant still had a moderate partial disability despite the slightly worsening range of motion during the March 14, 2016, examination.

At the hearing on May 5, 2016, claimant's counsel advised that claimant was not prepared to testify on the issue of labor market attachment and did not have any evidence of labor market attachment. The WCLJ made awards from September 11, 2015, to May 5, 2016, at the temporary partial rate of $701.35 per week, awarded an attorney's fee of $3,650.00, directed the carrier to suspend ongoing awards and adjourned the matter to June 30, 2016, for claimant's testimony on the issue of labor market attachment. The findings and awards made at the May 5, 2016, hearing are reflected in a decision filed May 10, 2016. The carrier requested administrative review of the WCLJ's May 10, 2016, decision, but subsequently withdrew the application before a decision was rendered.

At the June 30, 2016, hearing, the claimant testified that since the May 5, 2016, hearing he has gone to the New York State Department of Labor and met for one-half hour with a woman there to discuss his plans for returning to work. The claimant testified that he was not referred to VESID, but he is in the process of scheduling a follow up meeting with her. The claimant then admitted he has not done anything to look for work other than keeping his union card up to date.

On cross-examination, the claimant admitted he has not looked for work since July 9, 2015, despite knowing that Dr. Barbera placed restrictions on him against climbing ladders and scaffolding, as well as, no kneeling, crawling, squatting and crouching. The claimant admitted that these restrictions have been in place since July of 2015. The claimant admitted that he has not registered with any job placement services, nor has he looked for work.

After reviewing all the evidence, the WCLJ, in a decision filed July 8, 2016, rescinded all awards after July 9, 2015, because the claimant did not make a meaningful, diligent and persistent search for work after the issue of labor market attachment was raised during the July 9, 2015, hearing. Claimant sought administrative review of the WCLJ decision, arguing that it was an error for the WCLJ to rescind benefits prior to May 5, 2016.

LEGAL ANALYSIS

The Board's decision that the claimant is not entitled to awards for causally related lost time will be upheld if there is substantial evidence in the record to find that the claimant voluntarily removed himself from the labor market and did not make any "subsequent attempt to search for employment within [his] medical restrictions" (Matter of Aponte v NBTY, Inc., 126 AD3d 1157 [2015]). Furthermore, "The Board 'is the sole arbiter of witness credibility' (Matter of Hammes v Sunrise Psychiatric Clinic, Inc., 66 AD3d 1252 [2009]; accord Matter of Richman v NYS Unified Ct. Sys., 91 AD3d 1014 [2012])" (Matter of Wiess v Mittal, 96 AD3d 1175 [2012]).

In this case it is beyond dispute that the claimant was not attached to the labor market at any time after July 9, 2015. The claimant's reliance upon his doctor's opinion of a total disability after September 11, 2015, was not reasonable because the doctor had provided him with restrictions that he knew about, and the doctor testified on December 29, 2014, that the claimant was not totally disabled. In these circumstances, awards should be suspended based on claimant's failure to remain attached to the labor market as of September 11, 2015, because all awards after that point were controverted by the carrier.

Therefore, the Full Board finds that the preponderance of the evidence supports rescinding all awards after September 11, 2015.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed July 8, 2016, is MODIFIED to find that awards are rescinded from September 11, 2015, forward based on claimant's failure to remain attached to the labor market. All awards previously made for periods prior to September 11, 2015, remain in effect. No further action is planned by the Board at this time.