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Workers' Compensation Board

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Case # G0857046
Date of Accident: 06/23/2014
District Office: Buffalo
Employer: Alpha Painting Services
Carrier: Erie Ins Property Casualty Co
Carrier ID No.: W076962
Carrier Case No.: 010930244284
Date of Filing of Decision: 07/20/2017
Claimant's Attorney: Hurwitz, Whitcher & Molloy
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on May 16, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed November 23, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant reattached to the labor market as of February 11, 2016.

The Workers' Compensation Law Judge (WCLJ) found the claimant reattached to the labor market as of February 11, 2016.

The Board Panel majority disagreed, finding the claimant did not provide sufficient evidence of an independent employment search pursuant to Matter of American Axle, 2010 NY Wrk Comp 80303659.

The dissenting Board Panel member would find the claimant performed a credible independent employment search and had reattached to the labor market.

The claimant filed an application for Mandatory Full Board Review on December 22, 2016, arguing that he had reattached to the labor market.

The carrier filed a rebuttal on January 20, 2017, arguing that any employment search is outside of the claimant's medical restrictions and is therefore not in good faith. The carrier also maintains that the claimant failed to provide the requisite documentary evidence of his employment search and so, the claimant's efforts are insufficient to demonstrate an active and diligent employment search.

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

FACTS

By a Notice of Decision filed February 19, 2015, the WCLJ established the claim for a June 23, 2014, neck injury, made awards, and noted that the claimant raised the upper back as an additional site of injury, which the carrier disputed. By a Notice of Decision dated November 18, 2015, the WCLJ continued awards at the temporary partial disability rate, found prima facie medical evidence for the left shoulder, and directed the claimant to submit evidence of labor market attachment every sixty days. The WCLJ also scheduled the next hearing for the claimant's testimony concerning labor market attachment, and to review the carrier's independent medical examination (IME).

At a hearing held on January 13, 2016, the claimant testified that he submitted a copy of his employment search which included entries from November 20, 2015, until December 16, 2015. The claimant confirmed he lived in Springville, the nearest town was Cattaraugus, and he did not own a car. The claimant testified he applied for any job he could possibly perform within his restrictions, but out of the fifteen to twenty jobs, he had not received any response. The claimant confirmed he did not apply for the positions in person but called the potential employers.

On cross-examination, the claimant admitted that he had not applied for any position because either the employers were not hiring or the employers told him to return when he could work again. On redirect examination, the claimant confirmed he contacted the employers with the hope there would be a position for him, and he was attempting to secure employment.

The parties made summations, and the WCLJ ruled the claimant was not attached to the labor market because the claimant only called employers to ask about employment, but the employers were not actually hiring, and the claimant did not go to the employers in person. The WCLJ said, "I think you have to get involved with One Stop or a government agency to help you find a job. I am sorry. I am authorizing the carrier to suspend benefits."

These findings are reflected in a Notice of Decision filed January 19, 2016, in which the WCLJ also amended the claim to include the left shoulder, referred the claimant to the Board's Vocational Rehabilitation Division for an assessment of employability and possible referral for assistance in vocational rehabilitation. The WCLJ directed the carrier to suspend the claimant's benefits because the claimant was not attached to the labor market, and scheduled a hearing for the claimant's testimony concerning labor market attachment.

At the following hearing held on February 22, 2016, the claimant testified that shortly after the last hearing on January 13, 2016, he experienced chest pains, treated with his cardiologist, and underwent heart surgery on January 21, 2016. He was released from the hospital the following day. Since the prior hearing and his heart surgery, he registered with One Stop, filled out applications and resumes, got into the system, but received no jobs fitting his descriptions. He had not followed up with One Stop since, but he planned to follow up. He also registered with ACCES-VR, who indicated he would receive paperwork to complete and return, but he had not received the paperwork yet. The claimant also applied on-line to three potential employers, but he had not received a response. He was continuing his employment search and submitted a C-258 with the information about his employment search.

On cross-examination, the claimant testified he did not bring a copy of his resume with him to the hearing, and acknowledged the Department of Labor document did not indicate that the claimant sought resume assistance or job search planning. He did not bring copies of his online applications to the hearing. His physician had not cleared him to return to work after his heart surgery.

On redirect examination, the claimant testified that when he went to One Stop, he filled out the applications, but he already had a resume. The claimant testified that someone from One Stop was supposed to contact him, but had not yet, and he contacted ACCES-VR, registered with his information, and was told ACCES-VR would contact him, but they had not contacted him.

During on the record summations, the claimant's attorney requested that the claimant's benefits be reinstated because the claimant registered at One Stop, and according to Matter of A2Z Rentals Inc., 2016 NY Wrk Comp 0738617, registering at One Stop is sufficient to establish reattachment to the labor market. The claimant's attorney argued that the WCLJ directed the claimant to attend One Stop and register for ACCES-VR, and the claimant complied, even though he also underwent heart surgery. As such, the claimant's attorney requested the WCLJ find the claimant was reattached to the labor market.

The carrier's attorney noted that at the previous hearing the WCLJ found the claimant was not attached to the labor market, and since the hearing, the claimant became totally disabled because of an unrelated heart condition, and therefore, according to Matter of Bacci v Staten Island Univ. Hosp., 32 AD3d 582 [2006], the claimant was not entitled to benefits. Further, pursuant to Matter of American Axle, 2010 NY Wrk Comp 80303659, the claimant failed to fulfill the criteria to show reattachment.

The claimant's attorney pointed out that the claimant's hospital discharge papers after his heart surgery indicated the claimant had no disability, and also argued the claimant complied with all the directives he was given.

At the conclusion of the hearing, the WCLJ ruled the claimant was sufficiently reattached to the labor market as of February 11, 2016, because he attended One Stop, contacted ACCES-VR, and engaged in an independent job search. The WCLJ directed the claimant to submit documentation of his employment search every sixty days. The WCLJ's findings were memorialized in a Notice of Decision filed February 25, 2016.

The carrier filed an application for administrative review, arguing that the claimant's employment search was insincere because he testified his physician had not cleared him to return to work after his heart surgery, citing Matter of Bacci v Staten Island Univ. Hosp., 32 AD3d 582 [2006] and Matter of Emeritus at Perinton Manor, 2016 NY Wrk Comp G0991824, in support of the argument. The carrier maintained that in Matter of Emeritus, the Board found the claimant was not reattached to the labor market because the claimant's evidence of attachment was meaningless as the claimant had unrelated surgery and had not been cleared to return to work. With regards to the present case, the carrier contended the claimant's hospital discharge papers indicating no disability were not signed by a physician, and the claimant testified he was not cleared to return to work, so the Board Panel should find the claimant had not reattached to the labor market.

The carrier also maintained that even if the claimant's physician cleared him to return to work, the claimant failed to provide sufficient evidence of reattachment to the labor market because the claimant failed to complete the six required steps at One Stop. The six steps include calling for an appointment, attending an orientation session, meeting with a One Stop counselor to develop a resume, registering a resume at One Stop, inquiring about possible employment matches, and following any employment leads or referrals. The carrier also argued that the claimant's phone call to ACCES-VR fours day before the hearing was insufficient to show active participation. The carrier pointed out that the WCLJ previously found no attachment to the labor market when the claimant submitted his C-258 which indicated the claimant had contacted eighteen prospective employers, and the carrier maintained the claimant's subsequent efforts to show reattachment were substandard and half-hearted.

The claimant submitted a rebuttal, arguing his attempts to reattach to the labor market including registering with One Stop, contacting ACCES-VR to register telephonically, and submitting four employment applications from January 12 until February 22, while also undergoing and recuperating from unrelated heart surgery, were sufficient to demonstrate reattachment to the labor market.

LEGAL ANALYSIS

Reattachment to the labor market can be demonstrated by credible documentary evidence showing that the claimant is actively seeking work, within medical 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; 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.).

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.).

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 submitted a C-258 with a list of three employers he contacted concerning possible employment, documented the date of contact, the employer's address, the method of contact, the position for which he applied and the result of the inquiry. However, only two of the three entries contain the telephone number of the potential employer and none contain the name of the person contacted. These three entries reflect a limited independent job search that began three days before the February 22, 2016, hearing, which was insufficient to show a diligent and persistent job search pursuant to American Axle.

In addition, claimant's single visit to One Stop on February 18, 2016, and the scheduling of an appointment with ACCES-VR, with no corroborating documentary evidence, were insufficient to show active participation with a One Stop or Access VR as required to find reattachment to the labor market pursuant to American Axle.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant has not met not the evidentiary standard contained in American Axle to show reattachment to the labor market.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed February 25, 2016, is MODIFIED to rescind awards from January 13, 2016, to February 11, 2016, to find that the claimant is not attached to the labor market, and to rescind awards from February 11, 2016, to February 23, 2016, and continuing. The balance of the decision remains in effect. No further action is planned by the Board at this time.