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Workers' Compensation Board

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Case # G0582023
Date of Accident: 07/09/2013
District Office: NYC
Employer: Consolidated Edison Co of New York
Carrier: Consolidated Edison Co of New York
Carrier ID No.: W373005
Carrier Case No.: B278401325000101784
Date of Filing of Decision: 07/12/2017
Claimant's Attorney: Laurence Shaw, Esq.
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 October 21, 2016.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether the claimant's retirement was involuntary;
  2. whether the claimant violated Workers' Compensation Law (WCL) § 114-a when testifying about her retirement; and
  3. whether claimant reattached to the labor market as of October 23, 2015.

The Workers' Compensation Law Judge (WCLJ) found that the claimant's retirement was a voluntary withdrawal, that she had reattached to the labor market, that she did not violate WCL § 114-a, and that she had a 33.3% loss of wage earning capacity (LWEC).

The Board Panel majority modified the WCLJ decision by finding that the claimant violated WCL § 114-a(1), imposing a mandatory penalty disqualifying claimant from receiving awards between October 23, 2015, and December 10, 2015, and permanently disqualifying her from receiving further indemnity benefits, rendering the issue of reattachment moot.

The dissenting Board Panel member would find that claimant's retirement was involuntary, that she did not violate WCL § 114-a(1), that the claimant failed to remain attached to the labor market subsequent to her retirement by searching for work within her restrictions from June 1, 2012, to October 23, 2015, but that she reattached to the labor market from October 23, 2015, to December 10, 2015, and that awards should be made for that period at the rate of $390.00 per week.

The claimant filed an application for Mandatory Full Board Review on November 18, 2016, arguing that she did not violate WCL § 114-a, that her retirement was involuntary, and that she is attached to the labor market.

The self-insured employer (SIE) filed a rebuttal on November 30, 2016, arguing that claimant violated WCL § 114-a by misrepresenting the cause of her retirement during her sworn testimony, that her retirement was voluntary, and that she was not attached to the labor market and had no causally related reduction in earnings.

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

FACTS

Claimant filed a C-3 (Employee Claim) on May 11, 2012, alleging that she sustained multiple injuries, including bilateral carpal tunnel syndrome, as a result of repetitive keyboard use at work. The SIE controverted the claim.

Claimant testified at a hearing on December 16, 2013, that she was not working because she retired from the employer on June 1, 2012, after working there for 41 years as a senior office assistant. She initially wanted to retire in 2013, but she decided to retire earlier because a new system was being implemented by the company on July 31, 2012. She filed this claim for carpal tunnel syndrome prior to retiring because her work load increased as a result of the employer's new system, which caused her to experience "a lot of pain" in her hands (transcript, 12/16/13 hearing, p. 4). Her work required her to constantly type on a keyboard for eight hours a day, five days a week. Her hand symptoms began in early 2012. Her pain increased in April or May of 2012, as the result of working long hours. The claimant testified that she retired, "basically because they were incorporating a new system and I felt that at the age of 59 years and with 41 years of service, I felt that I had already imputed into the company and I just - I didn't want to start a new stage in the company" (id. at 12). The claimant admitted she never told her supervisor that she was retiring because of hand pain, nor did she mention her hand pain in her March 14, 2012, letter notifying her employer of her intention to retire.

The claimant's supervisor testified at the December 16, 2013, hearing that the claimant said she was retiring because forty years was enough. The supervisor explained that a lot of employees retired at the same time because the employer was switching to a new project system.

The WCLJ, in a decision filed February 26, 2014, established this claim for occupational bilateral carpal tunnel syndrome with a July 9, 2013, date of disablement. Claimant's average weekly wage was set at $1,756.80 and awards were made. The SIE sought administrative review and the Board Panel, in a decision filed August 5, 2014, affirmed the establishment of the claim, but rescinded awards and returned the case to the trial calendar for the record to be developed on the issues of voluntary retirement and labor market attachment.

Claimant's letter dated March 14, 2012, to her employer advising of her intent to retire, indicates that the claimant intended to retire with her last working day being March 31, 2012. The claimant does not mention her hands or any other physical disability in the letter.

At a hearing on December 10, 2015, the claimant testified on direct examination that she retired from the employer on June 1, 2012, because the work "was increasing" and becoming more difficult for her because of her increasing hand pain (transcript, 12/10/15 hearing, p. 4-5). She told her supervisor about her hand pain. On cross-examination, the claimant admitted she did not see a doctor for her hands until a year after her retirement because she could not find a doctor that takes workers' compensation. Her hands started hurting at work around March 2012. She choose a normal pension instead of a disability pension. The claimant did not choose a disability pension because she started experiencing the pain after she began the retirement process, so she just took a regular pension. She did not indicate that her disability contributed to her retirement, nor did she mention it in the exit interview. The claimant admitted that no doctor ever told her that she had to retire because of her disability.

The employer's human resources project specialist testified during the December 10, 2015, hearing that his job requires him to help employees nearing retirement get enrolled in their retirement plan. The witness testified that he reviewed the claimant's retirement file in preparation for his testimony. The specialist testified that the claimant first expressed her intent to retire on March 14, 2012, and she ultimately retired on June 1, 2012. The exit interview occurred on May 1, 2012, and the file indicated the claimant was retiring because she was pension eligible. On cross-examination, the specialist admitted that he was not present during the exit interview, and he only reviewed the retirement paperwork, not claimant's whole personnel file.

In a decision filed December 15, 2015, the WCLJ found that claimant voluntarily retired on June 1, 2012, that the SIE had raised WCL § 114-a(1), and continued the case. Claimant did not request review of that decision.

Both the claimant's treating physician, Dr. Faierman, and the SIE's consultant, Dr. Appeal, found that claimant's condition was not amenable to a schedule loss of use award and instead warranted classification.

Claimant testified at a hearing on January 1, 2016, that she graduated from high school but did not attend college. She worked for the employer as a senior office assistant for approximately 40 years. Her job duties involved keyboard work and filing. She received on-the-job training and obtained a certificate in secretarial stenography. She knows how to use a computer and can drive a car. She could read, write and speak English well.

Regarding her efforts to find work, claimant testified that she attended a One Stop orientation on October 30, 2015. She returned to One Stop on November 17, 2015, and attended a group resume class. She attended a cover-letter writing class at One Stop on November 19, 2015. She did not apply for any jobs while at One Stop. She performed an independent job search which is reflected in C-258 forms she submitted to the Board. She is limited in what jobs she can apply for because some jobs have lifting requirements in excess of her limitations, and there are some jobs which she is not qualified for.

In a decision filed January 14, 2016, the WCLJ classified claimant permanently partially disabled, found that she had a 33% LWEC, and that she had made good faith efforts to reattach to the labor market. Awards were held in abeyance and the case continued to consider the issue of whether claimant violated WCL § 114-a(1). The SIE requested administrative review of that decision, arguing that claimant should be found to have a 25% LWEC and that she did not reattach to the labor market. Claimant filed a rebuttal arguing that the WCLJ decision should be affirmed.

The record contains a letter from One-Stop confirming that claimant attended orientation on October 30, 2015.

The record contains two C-258 forms (Claimant's Record of Job Search Efforts/Contacts) indicating that claimant went to One Stop on October 23, October 30, November 17, November 19, and December 10, 2015. The C-258 forms reflect that claimant applied for 5 jobs on-line and three jobs in person between November 28, 2015, and January 7, 2016.

In a reserved decision filed May 20, 2016, and amended June 15, 2016, the WCLJ found that claimant did not violate WCL § 114-a(1), made awards from October 23, 2015, forward at the rate of $390.01 per week, and awarded a fee of $5,750.00 to claimant's attorney. The SIE requested administrative review of that decision, arguing that the record supports a finding the claimant violated WCL § 114-a(1) and that awards should be rescinded. Claimant filed a rebuttal arguing that the WCLJ decision should be affirmed.

LEGAL ANALYSIS

Voluntary Retirement

In her application for Mandatory Full Board Review, the claimant requests that the Board reverse the WCLJ's finding that her retirement was voluntary.

In a decision filed December 15, 2015, the WCLJ found that claimant had voluntarily retired on June 1, 2012. Claimant did not make a timely request for administrative review of that decision. Therefore, the finding that claimant voluntary retired remains in effect and will not be reviewed by the Full Board (see WCL § 23).

WCL § 114-a(1)

"Workers' Compensation Law § 114-a authorizes the Board to disqualify a claimant from receiving future wage replacement benefits if it finds that the claimant knowingly made a false statement or misrepresented a material fact in order to obtain workers' compensation benefits or to influence any determination regarding such benefits (see Matter of Phelps v Phelps, 277 A.D.2d 736 [2000])" (Matter of Johnson v New York State Dept. of Transp., 305 AD2d 927 [2003]).

Claimant testified at a hearing on December 16, 2013, that she initially wanted to retire in 2013, but decided to retire earlier because a new system was being implemented by her employer. The claimant testified that she retired, "basically because they were incorporating a new system and I felt that at the age of 59 years and with 41 years of service, I felt that I had already imputed into the company and I just - I didn't want to start a new stage in the company" (transcript, 12/16/13 hearing, p 12). She also made clear that her work load increased as a result of the employer's new system, which caused her to experience "a lot of pain" in her hands (id. at p. 4).

When she testified on December 10, 2015, claimant stated that she retired from the employer on June 1, 2012, because the work "was increasing" and becoming more difficult for her because of her increasing hand pain.

The Full Board finds that claimant's testimony concerning the reason for her retirement was not so contradictory that it amounted to the misstatement of a material fact. While she testified on December 16, 2013, that she retired because of a new system implemented by her employer, she also clearly indicated that she was experiencing increasing pain in her hands prior to making her decision to retire. Her later testimony that she retired due to increasing pain in her hands is not wholly inconsistent with her earlier testimony.

Therefore, the Full Board finds that claimant did not violate WCL § 114-a.

Labor Market Attachment

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; 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; 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).

The Full Board finds that the claimant has submitted insufficient evidence to show that she was attached to the labor market by searching for work within her restrictions during the period from her retirement on June 1, 2012, to October 23, 2015. However, the Full Board finds that claimant did reattach to the labor market during the period from October 23, 2015, to December 10, 2015, by actively participating at a One-Stop rehabilitation center. Finally, the Full Board finds that claimant has submitted insufficient evidence of labor market attachment subsequent to December 10, 2015. The record shows that the claimant did not return to the One-Stop after December 10, 2015, and the claimant's independent job search submission was inadequate to show attachment to the labor market, as the claimant applied to only eight prospective employers for the period from November 28, 2015, to January 7, 2016, and the C-258 forms documenting her job search do not contain all the information required by Matter of American Axle.

Therefore, the claimant is entitled to 6.8 weeks of indemnity benefits at the weekly rate of $390.00 during the period from October 23, 2015, to December 10, 2015, for a total award of $2,652.00.

Attorney's Fee

Pursuant to WCL § 24, all attorney fee requests must be approved by the Board and "[t]he Board is vested with 'broad discretion with regard to the approval of counsel fees' (Matter of Pavone v Ambassador Transp., Inc., 26 AD3d 645 [2006]; see Matter of Grasso v Brewster Cent. School Dist., 81 AD3d 1060 [2011])" (Matter of Kennedy v New York City Dept. of Corr., 140 AD3d 1572 [2016]). Before approving a fee request, the Board must consider the extent of the services rendered and the financial status of the claimant. Factors relevant in determining the value of the legal services rendered include "the nature and extent of the services, the actual time spent, the necessity therefor, the nature of the issues involved, the professional standing of counsel, and the results achieved" (Jordan v Freeman, 40 AD2d 656 [1972] [citation omitted]). In addition, the fee must not be based solely upon the amount of compensation awarded (see 12 NYCRR 300.17[f]). If the Board determines that the attorney's efforts did not in any way benefit the claimant in the claim for compensation benefits, it may refuse to approve a fee request (see Matter of Lopez v City of New York, 42 AD2d 654 [1973]). The representation in and of itself is not a benefit unless the claimant receives or will receive some economic benefit from the services (Matter of Marshall v Savannah Sausage Corp., 192 AD2d 954 [1993], lv denied, 82 NY2d 655 [1993]).

Taking into consideration all relevant factors and 12 NYCRR 300.17(f), the claimant's failure to demonstrate labor market attachment, the services rendered, and with regard to the financial status of the claimant (in light of the substantial award modification), the Full Board hereby reduces the fee to the claimant's counsel from $5,750.00 to $250.00.

CONCLUSION

ACCORDINGLY, the WCLJ decisions filed January 14, 2016, and May 20, 2016, and amended decision filed June 15, 2016, are MODIFIED to find that claimant failed to remain attached to the labor market subsequent to her retirement by searching for work within her restrictions during the period from June 1, 2012, to October 23, 2015, and is not entitled to benefits for that period; to find that claimant reattached to the labor market from October 23, 2015, to December 10, 2015; to make wards for that period at the rate of $390.00 per week; and to make a fee to claimant's attorney of $250.00. In all other respects, those decisions are affirmed. No further action is planned by the Board at this time.