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Workers' Compensation Board

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Case # G0197469
Date of Accident: 07/16/2009
District Office: NYC
Employer: Prism Consultants/Cold Spring Hills
Carrier: Arch Insurance Company
Carrier ID No.: W087381
Carrier Case No.: 003606000382WC01
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 whether the claimant was attached to the labor market.

The Workers' Compensation Law Judge (WCLJ) found the claimant was attached to the labor market.

The Board Panel majority affirmed the WCLJ.

The dissenting Board Panel member would find that claimant applied for positions which were outside of his work restrictions and outside of his qualifications, and as such, he failed to conduct a sufficient employment search.

The carrier filed an application for Mandatory Full Board Review on November 21, 2016, arguing that the claimant failed to demonstrate attachment to the labor market for the relevant time periods.

The claimant filed a rebuttal on December 21, 2016, arguing that he remained attached to the labor market through his active participation with Workforce One and urges the Full Board to affirm the opinion of the Board Panel majority.

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

FACTS

By form C-3 (Employee Claim) dated June 23, 2010, the claimant alleged work-related injuries to his low back occurred on July 16, 2009, while working as a housekeeper and moving furniture. By Administrative Decision dated September 16, 2010, the Board established the case for the back and made awards. By Notice of Decision dated December 24, 2010, the WCLJ directed the carrier to pay awards, noted the carrier raised attachment to the labor market, and continued the case.

By Notice of Decision dated August 2, 2012, the WCLJ found the claimant not attached to the labor market from December 21, 2010, until September 21, 2011; the claimant reattached to the labor market from September 21, 2011, until October 21, 2011; the claimant was not attached to the labor market from October 21, 2011, until May 9, 2012; and the claimant reattached to the labor market on May 9, 2012. As such, the WCLJ made awards and ordered the carrier to continue payments.

At a hearing held on April 30, 2013, the carrier again raised the issue of labor market attachment and by Notice of Decision dated May 7, 2013, the WCLJ held the application to suspend awards in abeyance and scheduled a hearing for the claimant's testimony concerning attachment to the labor market. By a decision filed May 31, 2013, the WCLJ found the claimant was attached to the labor market and made awards.

By an RFA-2 (Request for Further Action by Carrier/Employer) dated June 24, 2013, the carrier requested a hearing concerning labor market attachment, and alleged that the claimant failed to follow up with job applications and did not disclose information at the last hearing. By a decision filed August 14, 2013, the WCLJ made awards until August 10, 2013, directed the carrier not to continue payments as there was no up to date medical evidence, and continued the case. By a decision filed September 12, 2013, the WCLJ noted the claimant did not appear for the hearing, or was otherwise unprepared to proceed, and also noted the carrier raised the issue of attachment to the labor market.

By an RFA-1LC (Request for Action by Legal Counsel) dated September 17, 2015, the claimant's attorney requested the case be returned to the trial calendar because the claimant was not working and not being paid awards. By a decision filed November 13, 2015, the WCLJ directed the claimant and the carrier to produce medical evidence of permanency before the next hearing. By a decision filed January 11, 2016, the WCLJ extended the period of time for the parties to submit medical evidence of permanency and directed the claimant to produce documentary evidence of his employment search.

At a hearing on March 15, 2016, the claimant testified that he was not working and had not found a job but he was attending Workforce One, taking courses and trying to obtain interviews. He went to Workforce One once or twice per week and had interviewed for positions. The claimant confirmed that his resume was on file at Workforce One. Under questioning from the WCLJ, the claimant confirmed he stuttered and his stutter was aggravated by his medicine. The claimant testified that his physician directed him to not use power tools and he also could not perform the same type of work he used to do, such as installing sheetrock. He received Social Security Disability. He was not certified to be a security guard but applied for security positions because the Workforce One counselors advised him to.

The claimant submitted documentation of his employment search (doc. #264050764) which includes the dates he attended Workforce One from December 2013 until February 23 2015, certain positions he applied for and the Workforce One schedule.

By a decision filed April 6, 2016, the WCLJ found the claimant was not attached to the labor market from August 10, 2013, until December 17, 2013, found the claimant attached to the labor market from December 17, 2013, until February 23, 2015, and held in abeyance the period from February 23, 2015, until March 16, 2016. The WCLJ directed the parties to schedule medical depositions and scheduled the following hearing for the testimony of the claimant concerning loss of wage earning capacity and labor market attachment.

In its application for administrative review of the WCLJ's April 6, 2016, decision, the carrier argued that the finding the claimant was attached to the labor market from December 17, 2013, through February 23, 2015, should be rescinded because, although the claimant testified he attended Workforce One and attempted to secure employment, the claimant's participation failed to meet the standard of active participation as required pursuant to Matter of American Axle, 2009 Wrk Comp 80303659.

In rebuttal, the claimant argued that he demonstrated attachment to the labor market by actively participating during his many days at Workforce One and by applying for positions he thought were suitable given his work history and physical limitations.

At a hearing on May 26, 2016, the claimant testified that he was born in Trinidad and after high school he attended trade school to learn cabinet installation, tile installation and electrical and plumbing work. He worked in Trinidad as a forklift operator and after he moved to the United States, he was a superintendent for about twelve years before he began working as a housekeeper. He attended Workforce One regularly and applied for security guard positions although he was not licensed as a security guard and had no training to be a security guard. He applied for positions as a forklift operator, but he would not know if his injuries would prevent him from working as a forklift operator until he tried. His medication may prevent him from operating a forklift. He also applied for positions installing sheetrock, but he did not think he could actually do the job.

The claimant submitted his resume and the documentation of his attendance at Workforce One to find employment through May 6, 2016, which is contained in document #265509899 of the case file.

In a decision filed May 31, 2016, the WCLJ found that claimant was not attached to the labor market from February 23, 2015, until January 11, 2016, but was attached to the labor market from January 11, 2016, forward and made awards.

In its application for administrative review, the carrier argued the claimant failed to complete a suitable search for employment within his work restrictions. The carrier points out the claimant applied for positions as a security guard but he was not licensed or trained as a security guard and would be unable to work as a security guard. The carrier argues the claimant also applied for positions as a forklift operator although he cannot perform the work because of his medication. The carrier maintains the claimant participated to a limited extent at Workforce One as the only documentation the claimant produced was evidence the claimant went to the resource room, and American Axle requires active participation.

In rebuttal, the claimant argued that he actively participated at Workforce One, and the WCLJ's finding that he was attached to the labor market was correct.

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).

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]). "[A] claimant who fails to make a demonstration via documentary evidence of his/her participation in a job service location . . . may be found to be incredible on the issue of active participation in a job-location service, and as a result, deemed not attached to the labor market" (Matter of Advance Auto Parts, 2014 NY Wrk Comp G0218238, remitted by Matter of Winters v Advance Auto Parts, 119 AD3d 1041 [2014]).

Here, the claimant met the minimum requirements contained in American Axle to demonstrate attachment to the labor market. The claimant created his resume, registered it at Workforce One, regularly attended Workforce One, followed the advice of the counselors by applying to certain positions and followed up on potential employment opportunities. As such, the claimant was attached to the labor market. While the claimant applied for positions that he may have not been able to perform, the claimant credibly testified he was not sure whether he could work in certain occupations unless he tried, and the claimant was following the advice of the Workforce One counselors.

Therefore, the Full Board finds that the preponderance of the evidence supports the conclusion that the claimant demonstrated attachment to the labor market for the relevant time periods pursuant to American Axle.

CONCLUSION

ACCORDINGLY, the WCLJ decisions filed April 6, 2016, and May 31, 2016, are AFFIRMED. No further action is planned by the Board at this time.