Skip to Content

Workers' Compensation Board

Language Assistance: (877) 632-4996 | Language Access Policy

 


Case # 40501945
Date of Accident: 01/19/2006
District Office: NYC
Employer: Southside Hospital
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: NSHS-003089
Date of Filing of Decision: 06/09/2017
Claimant's Attorney: Vecere & Travaglia, LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

* This decision also pertains to the following case(s): 40501945.

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 September 15, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant was attached to the labor market as of October 15, 2015.

The Workers' Compensation Law Judge (WCLJ) found that the claimant was attached to the labor market as of October 15, 2015.

The Board Panel majority modified the WCLJ decision to find that the claimant was not attached to labor market and rescinded awards subsequent to October 15, 2015.

The dissenting Board Panel member would affirm the WCLJ decision and find that the claimant demonstrated a sufficient attachment to the labor market.

The claimant filed an application for Mandatory Full Board Review on October 7, 2016, that her causally related disability is the sole reason for her reduced earnings, she is entitled to collect ongoing compensation benefits, and she demonstrated labor market attachment within her medical restrictions.

The carrier filed a rebuttal on November 4, 2016, asking that the decision of the Board Panel majority be affirmed.

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

FACTS

In WCB Case Number 40501945, accident, notice and causal relationship were previously established for injuries to the back sustained on January 25, 2005, while working as a nurse's aide. The average weekly wage was set at $889.14 and awards were made at various rates.

In WCB Case Number 40602310, accident, notice and causal relationship were previously established for injuries to the neck, back, right shoulder, right hand, right carpal tunnel syndrome, and right thumb sustained on January 19, 2006, while working as a nurse's aide. The average weekly wage was set at $600.00 and awards were made at various rates.

In a decision filed October 20, 2015, the WCLJ noted that at the underlying hearing on October 15, 2015, claimant had indicated that "she last worked for a different employer in 2011," and the carrier raised the issues of unrelated wage loss and attachment to the labor market. The case was continued to consider, among other issues, whether claimant had any further causally related wage loss.

Dr. Hecht, the claimant's treating physician, filed Form C-4.3 (Doctor's Report of MMI/Permanent Impairment) with the Board on October 16, 2015. The doctor found that the claimant had reached maximum medical improvement (MMI) and had a permanent impairment of her cervical spine of severity ranking A, and of her lumbar spine of severity ranking B. The doctor opined that the claimant could do sedentary work and could occasionally lift/carry up to ten pounds, pull/push up to ten pounds, sit, stand, walk, climb, kneel, bend, stoop, squat, perform fine manipulation, reach overhead, reach at/or below shoulder level, drive a vehicle, and operate machinery. Dr. Hecht opined that the claimant could frequently perform simple grasping. The doctor opined that the claimant could not perform her at-injury work activities without restrictions. Dr. Hecht was deposed on December 21, 2015, and testified that he first treated the claimant on March 25, 2015.

Dr. Passick the carrier's consulting Board certified orthopedic surgeon, was deposed on December 2, 2015, and testified that he examined the claimant on October 2, 1013. Claimant reported pain in her neck, lower back, right shoulder, elbow, wrist, and right knee. Dr. Passick diagnosed the claimant with strains of her lumbar spine and right shoulder and noted that she had undergone right carpal tunnel release. Dr. Passick found that claimant had a 25% schedule loss of use (SLU) of the right hand, a 20% SLU of the right arm, and a permanent impairment of the lumbar spine of class 3, severity ranking B.

At a hearing on January 6, 2016, the claimant testified that after her January 2005 accident, she went back to work in September 2005. She stopped working after her January 2006 accident and had lost time until 2010, when she started working for a new employer. She stopped working in 2012 because she was fired. She was born in Haiti, finished high school in Haiti, came to the United States in 1980, she is a United States citizen. All of her jobs involved working with seniors as either a nurse's aide or a home health aide. She speaks, reads, and writes in English and French Creole, and she can drive. She was looking for work by calling employers and asking for home health aide positions. She was offered a "four-hour job" as a home health aide, but she didn't take the job because she was looking for employment with more hours (p. 17-18).

She had a card from the Department of Labor for a first appointment on November 6, 2015.

The claimant submitted a C-258 at the January 6, 2016, hearing indicating that she applied for seven positions between September 23, 2015, and December 3, 2015, six of which were home health aide positions and one a cleaning position.

At the conclusion of the hearing held on January 6, 2016, the WCLJ classified claimant permanently partially disabled, found that she had a loss of wage earning capacity of 50%, and apportioned liability for claimant's disability 60% to WCB Case Number 40602310 and 40% to WCB Case Number 40501945 as of October 15, 2015. The WCLJ noted that the claimant was fired in January 2012 for unknown reasons and that she had no causally related wage loss up to October 15, 2015. However, the WCLJ found that the claimant was attached to the labor market as of October 15, 2015, and made awards from that date forward at the rate of $296.35 per week, subject to apportionment, and awarded attorneys' fee in the amount of $3,500.00. These findings were memorialized in notices of decision filed on January 12, 2016, and January 25, 2016.

In the carrier's applications for review of the notices of decision filed on January 12, 2016, and January 25, 2016, it argued that the record showed that the claimant's lost time after October 15, 2015, was solely due to a factor other than her disability and, therefore, her loss of wages during this time was not compensable. The carrier also argued, in the alternative, that the awards must be rescinded because the claimant failed to prove she remained attached to the labor market as of October 15, 2015.

The claimant argued in rebuttal that the WCLJ properly directed awards because her causally related disability was the sole reason for her reduced earnings. The claimant also argued that she demonstrated labor market attachment within her medical restrictions pursuant to American Axle.

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).

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]). As the Court of Appeals held in Zamora, 19 NY3d 186 (2012), "[b]y finding alternative work consistent with his or her physical limitations, or at least showing reasonable efforts at finding such work, the claimant can prove to the Board that the cause of his or her reduced income is a disability, rather than unwillingness to work again" (id.).

Here, the claimant's loss of employment is unrelated to her compensable disability as she testified that she was fired from her last job in 2012 due to a reason other than her disability, therefore, she must demonstrate a reattachment to the labor market in order to be entitled to compensation benefits. The claimant in this matter has a partial disability and must look for work within the limits of her partial disability or otherwise demonstrate a sufficient attachment to the labor market (Matter of Robert D. Anderson Co Inc., 2012 NY Wrk Comp G0016823; see generally Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 [2012]). A review of the record indicates that the Board Panel majority was correct in determining that the claimant had not reattached to the labor market.

The C-258 form filed by the claimant on January 6, 2016, indicates that she applied for seven positions between September 23, 2015, and December 3, 2015, of which six were home health aide positions and one a cleaning position. The form contains the dates of contact, the names and addresses of the employers, the method of contact in most of the cases, the employers' telephone numbers, the positions applied for, and if an application was taken. However, the C-258 form does not include the names of the persons with whom the claimant discussed employment opportunities at the listed employers. The claimant testified that she was looking for employment by cold calling employers to see if they had any home health aide position openings. The claimant also testified that she had been offered part-time employment, but did not accept the employment because she wanted more hours. Dr. Hecht opined in his C-4.3 that the claimant was not able to perform her former home health aide duties and restricted the claimant to lifting no more than ten pounds. Therefore, the claimant's limited and sporadic job search efforts for home health aide positions are not sufficient evidence that she is actively seeking work within her medical restrictions and she has not demonstrated a good-faith effort to secure employment.

In addition, the claimant had a card from the Department of Labor for a first appointment on November 6, 2015. The claimant's registration with the Department of Labor does not equate to active participation for the period at issue, and accordingly, is not sufficient evidence of an attachment to the labor market.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant was not attached to the labor market.

CONCLUSION

ACCORDINGLY, the WCLJ decisions filed January 12, 2016 (in WCB # 40602310), and January 25, 2016 (in WCB # 40501945), are MODIFIED to find that claimant was not attached to the labor market and to rescind awards subsequent to October 15, 2015. No further action is planned by the Board at this time.