Skip to Content

Workers' Compensation Board

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

 


Case # G0348487
Date of Accident: 06/21/2010
District Office: NYC
Employer: Altronix
Carrier: Graphic Arts Mutual Ins Co
Carrier ID No.: W099006
Carrier Case No.: 0001400775
Date of Filing of Decision: 12/20/2017
Claimant's Attorney: Pasternack Tilker Ziegler Walsh Stanton & Romano LLP
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on November 21, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed March 15, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant produced sufficient evidence of her attachment to the labor market.

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

The Board Panel majority reversed the WCLJ decision and found that the claimant has not demonstrated an attachment to the labor market.

The dissenting Board Panel member would find that the claimant is attached to the labor market, and would affirm the WCLJ's finding.

The claimant filed an application for Mandatory Full Board Review on April 13, 2017, arguing that she was attached to the labor market and that the carrier's application for administrative review should not have been considered because it was not served on the claimant's attorney.

The carrier filed a rebuttal on May 10, 2017, asserting that the claimant is not attached to the labor market.

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

FACTS

This case is established for work-related injuries to the left shoulder, left elbow, left wrist, neck and depression. The average weekly wage for the year before the June 21, 2010, accident was set at $324.15.

At a hearing on October 28, 2015, the claimant was classified with a permanent partial disability and found to have a 70% loss of wage earning capacity, awards were brought up to date and continued awards were directed at the permanent partial disability rate of $121.57 per week. The carrier then raised the issue of attachment to the labor market, and the WCLJ directed the claimant to produce evidence of labor market attachment every ninety days and indicated the case would be marked no further action. The findings and awards made at the October 28, 2015, hearing are reflected in a decision filed November 3, 2015.

The carrier filed an RFA-2 (Request for Further Action by Carrier/Employer) on February 9, 2016, seeking a hearing to address attachment to the labor market.

At a July 8, 2016, hearing, the claimant testified that she has been looking for work as a receptionist or sales person. She spoke with a doctor about her work restrictions, and she admits that the jobs she applied for are not within them. Additionally, the claimant does not believe that she could do these jobs. The social worker the claimant met with from the Board told her to apply for receptionist type jobs. None of the jobs she applied for called her back because she disclosed her disability on the applications. She only applied for jobs over the internet because the woman at Workforce One told her to do so.

On cross-examination, the claimant confirmed that she cannot read or write in English, but she is able to speak a little. She does not know how to use a computer. Her job search log was written in English because the woman at Workforce One taught her enough to fill out a work search log. The claimant then testified that her daughters helped her fill out the job search log. She applied for one job by phone in Spanish because she found it in a Spanish newspaper. She never looked into whether this job required fluency in English. She does not believe she can work as a bilingual assistant.

The claimant applied for jobs she knew she could not do because the woman at Workforce One told her to. The claimant admitted she did the job search because she was obligated too, and not because she believes she is capable of working. The claimant admitted that she did not apply to one single job that she can do.

The WCLJ found that the claimant is attached to the labor market because she performed a timely, diligent and persistent search for work (see notice of decision filed July 13, 2016).

The carrier filed an application for administrative review on August 10, 2016. The claimant filed an untimely rebuttal contending that carrier's application for review should not be considered because it was not served on claimant's counsel.

LEGAL ANALYSIS

Service of Carrier's Application for Review

At the time the carrier filed its application for administrative review, 12 NYCRR 300.15(a) provided that a carrier could serve its application for review on either the claimant or the claimant's attorney. Therefore, because the application was served on the claimant, the carrier's application for review was properly considered.

Labor Market Attachment

Soon after the March 15, 2017, Board Panel decision was issued, the 2017-2018 executive budget (Part NNN of Chapter 59, Laws of 2017) was enacted on April 10, 2017, and included an amendment to Workers' Compensation Law (WCL) 15(3)(w), which was effective immediately. WCL 15(3)(w) now provides that, where a claimant was found "entitled to benefits at the time of classification," he or she "is no longer required to demonstrate [an] ongoing labor market attachment" thereafter. Pursuant to this amendment, compensation shall be payable during the subsequent continuance of a permanent partial disability "without the necessity for the claimant who is entitled to benefits at the time of classification to demonstrate ongoing attachment to the labor market" (see Matter of L.V.I Environmental Inc., 2017 NY Wrk Comp 00236976.; see also Board Subject No. 046-936, which states "after Board determination of permanent partial disability, a claimant who is entitled to benefits at the time of classification is no longer required to demonstrate ongoing labor market attachment").

Here, at the hearing on October 28, 2015, the carrier raised the issue of labor market attachment after claimant was classified as permanently partially disabled and awards were made. The WCLJ did not make an express finding on that issue of labor market attachment, but directed claimant to produce work search evidence every ninety days. Thereafter, the carrier filed an RFA-2 on February 9, 2016, and the matter was returned to the trial calendar. By a decision filed July 13, 2016, the WCLJ found that claimant was attached to the labor market. The carrier requested administrative review and in a decision filed March 15, 2017, the Board Panel majority found that claimant was not attached to the labor market. Claimant filed an application for Mandatory Full Board Review.

However, based on statutory amendment, WCL 15(3)(w) was amended effective immediately to provide that when a claimant is found to be "entitled to benefits at the time of classification," he or she "is no longer required to demonstrate [an] ongoing labor market attachment..." Because claimant's application for Mandatory Full Board Review had not yet been addressed and a final determination had not been reached with respect to the issue of labor market attachment, the Full Board finds that based on the amendment to WCL 15(3)(w), claimant was not required to demonstrate ongoing labor market attachment.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed July 13, 2016, is MODIFIED to find that pursuant to WCL 15(3)(w), claimant was not required to demonstrate ongoing labor market attachment. The carrier is therefore directed to continue awards. No further action is planned by the Board at this time.