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Workers' Compensation Board

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Case # G0713300
Date of Accident: 03/05/2013
District Office: Hauppauge
Employer: NYC Department of Environmental
Carrier: CNY Other Than Ed, HEd Water
Carrier ID No.: W847008
Carrier Case No.: W826-13-00124
Date of Filing of Decision: 12/27/2017
Claimant's Attorney: Grey and Grey 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 December 14, 2016.

ISSUE

The issues presented for Mandatory Full Board Review are whether the claimant has demonstrated an attachment to the labor market and whether the claimant's counsel was properly awarded an attorney's fee of $100.00.

The Workers' Compensation Law Judge (WCLJ) found that the claimant was currently attached to the labor market and made awards. The WCLJ also awarded an attorney's fee of $2,500.00 to the claimant's attorney.

The Board Panel majority modified the WCLJ decision to find no compensable lost time after May 4, 2016, due to the claimant's failure to demonstrate attachment to the labor market, and to reduce the attorney's fee to $100.00.

The dissenting Board Panel member disagreed with the majority with respect to the labor market attachment issue and would have found the claimant attached to the labor market.

The claimant filed an application for Mandatory Full Board Review on January 13, 2017, arguing that he proffered sufficient evidence of labor market attachment in the form of the C-258 form, which documented his independent job search, per the standards set forth in American Axle (2010 NY Wrk Comp 80303659) and Matter of Suffolk County Health Services (2016 NY Wrk Comp G0713095). The claimant's attorney argues that it is entitled to a fee of $3,750.00, and attaches a new fee application.

The self-insured employer (SIE) filed a rebuttal on February 13, 2017, arguing that the Board Panel majority correctly found that the claimant was unattached 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 claimant's bilateral knees and left shoulder stemming from an accident on March 5, 2013 (see EC-200x [1-30-14]). The average weekly wage was set at $1,615.77 without prejudice (see EC-23 [12-19-14]). Awards have been issued at varying rates with the most recent award being $690.00 per week from February 3, 2016, through April 5, 2016 (see EC-23 [5-6-16]).

In an IME-4 (Practitioner's Report of Independent Medical Examination) report for an examination done on June 22, 2015, Dr. Kelman, the carrier's consulting physician, indicated that the claimant was six feet two inches tall and weighed 450 pounds (see IME-4 [6-22-15], at p. 3). The claimant had prior work-related right knee surgery in 2011, work-related right shoulder surgery in 2013, and work-related left shoulder surgery in 2007 (see id. at p. 2). He diagnosed the claimant with left shoulder sprain/strain, right knee sprain/strain, and left knee sprain/strain, status post arthroscopic surgery (see id. at p. 4). He further indicated that the claimant had a moderate partial disability from an orthopedic perspective (see id. at p. 5).

By a decision filed February 5, 2016, the WCLJ continued awards at the temporary partial disability rate of $690.00 per week and scheduled a hearing on labor market attachment, among other issues.

At the hearing on May 3, 2016, the claimant testified that he was last employed on March 19, 2014 (see Hearing Transcript, 5/3/16, p. 3). He used his accrued time and was not removed from payroll until August 29, 2014 (see id.). He retired from his employment on a disability retirement (see id. at p. 4). He has been searching for work, and his job search consisted exclusively of searching for employment online and submitting his resume on "jobsearch.com" (see id. at p. 4-5).

On cross-examination, claimant testified that he did not contact Workforce One or any other job placement entity (see id. at p. 8). He did not bring a copy of his resume to the hearing (see id. at p. 10). He stated that all of the jobs to which he applied were essentially for delivery driving positions, and he believed that he could perform the duties of a driver to some degree because he had experience driving a truck in his prior job and had a commercial driver's license (CDL) (see id. at p. 11). He explained that most of the jobs to which he applied would have pre-loaded trucks, or would have involved being a school bus driver, so there would be no heavy lifting involved (see id. at p. 12). The claimant conceded that he received his disability retirement on the basis that he was not able to perform his job duties due to his disability (see id. at p. 12).

In response to questions from the WCLJ, the claimant testified that he worked as a sewage treatment worker for about 23 years (see id. at p. 13). His job duties included driving a truck to different sewers and lifting manhole covers weighing over 100 pounds to ensure that the sewer is flowing (see id.). He attended high school for more than four years and ultimately obtained a GED; he has no college education (see id. at pp. 14-15). On re-direct, the claimant stated that, of the jobs applied for, he could perform some of the duties and believed that the jobs would be "a little lighter" than his previous job (id. at p. 15; see also id. at p. 16). He stated that he would characterize his previous position as "a heavy duty title" (id. at p. 16).

The claimant submitted a form C-258 (Claimant's Record of Job Search Efforts/Contacts), which contained two pages listing 52 jobs, primarily driver positions, that the claimant applied for between February 14, 2016, and May 2, 2016. He indicated that he did not receive a response from any of the employers.

The claimant's attorney submitted a fee application (OC-400.1) requesting a fee of $2,800.00.

By a decision filed May 6, 2016, the WCLJ found that the claimant was currently attached to the labor market and directed him to produce proof of attachment on a monthly basis effective June 2016. The WCLJ continued awards at the temporary partial disability rate of $690.00 per week, and awarded a fee of $2,500.00 to the claimant's attorney.

In an application filed on May 13, 2016, the SIE sought administrative review of the May 6, 2016, WCLJ decision. Therein, the SIE argued that the claimant's job search efforts were not meaningful and did not comply with the criteria set forth in Matter of American Axle (2010 NY Wrk Comp 80303659). The SIE noted that the claimant's entire work search was done online, he did not attend Workforce One or any similar organization, he did not follow up with any employers regarding his job application, and he applied for jobs that were similar to his pre-accident position, which he was unable to perform, per his disability retirement.

In rebuttal, the claimant contended that the WCLJ decision should be affirmed because he performed a timely, diligent, and persistent search within his medical restrictions. The claimant noted that he looked for employment primarily as a driver because he had a CDL and prior experience driving, and the vehicles would not require loading.

LEGAL ANALYSIS

Labor Market Attachment

Attachment to the labor market can be demonstrated by credible documentary evidence showing that the claimant is actively seeking work within his 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 his work restrictions (see American Axle, 2010 NY Wrk Comp 80303659).

At a minimum, if the independent job search is in person, the 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; and the application completed are necessary, along with the day, month, and year submitted, the nature of the employment sought, the name and address of the employer, and the response of the potential employer (see id.).

The Board has also recognized that many job applications are now filed online or posted on internet job sites that are controlled by the employer or a posting site. An applicant using these websites to search for work typically is not provided with the evidence of an in-person job search that is required by American Axle. However, "[m]any employers and job posting sites that accept applications online provide an e-mail confirmation and/or a reference number when an individual uses their site" (Suffolk County Health Services, 2016 NY Wrk Comp G0713095). Therefore, if the claimant has been provided with a confirmation e-mail or reference number, that information should be provided to the Board as evidence of the job search. "If such documentation is not available, the claimant must, at a minimum, document the date he or she made the online application, the position applied for, and the name of the site they used" (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 Matter of Zamora, "[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" (Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 [2012]).

Here, the record reflects that the claimant submitted a C-258 form documenting 52 jobs he applied to between February 14, 2016, and May 2, 2016. For each entry, the claimant listed the date of contact, the employer's name, the method of contact, the position applied for, and the result of the contact. Consistent with his C-258 form, the claimant testified that he used the website "jobsearch.com" to search and apply for positions, and that he primarily applied for driving positions because he had prior experience driving as well as a CDL. During his testimony, the claimant stated that many of the driving positions to which he applied would be lighter duty than his previous position because the jobs would not require him to load a truck, whereas his pre-accident employment required him to lift manhole covers weighing more than 100 pounds in addition to driving a truck. The claimant therefore believed that he would be capable of performing many of the jobs to which he applied. Further, the claimant complied with Suffolk County Health Services by documenting the date of the application, the position applied for, and the job website used to apply.

As such, the Full Board finds that the preponderance of the evidence demonstrates that the claimant conducted a thorough job search within his medical restrictions, consistent with the Board's guidelines set forth in American Axle and Suffolk County Health Services, and has therefore demonstrated his attachment to the labor market.

Attorney's Fee Award

Workers' Compensation Law 24 provides that any fee of an attorney or licensed representative shall be approved by the Workers' Compensation Board and that such fee shall be a lien on the compensation awarded. 12 NYCRR 300.17 provides that any attorney or representative fee in excess of $450.00 cannot be approved unless an OC-400.1 (Application For A Fee By Claimant's Attorney or Representative) is filed with the Board, which specifies the services rendered and the time spent performing such services. The fee shall be commensurate to the services rendered and the financial status of the claimant, and shall not be solely based upon the amount of the compensation award.

In this case, the claimant's attorney filed an OC-400.1 form on May 5, 2016, requesting a $2,800.00 fee. The form indicated that the attorney had rendered a total of four hours of services on December 16, 2014; February 2, 2016; April 4, 2016; and May 3, 2016; for "hearing preparation [and] handling" as well as three hours on unspecified dates performing "phone calls and file review" and 30 minutes on unspecified dates performing "memos." However, the claimant's attorney had already received $400.00 for services rendered on December 16, 2014 (see EC-23 [12-19-14]), and $250.00 for services rendered on both February 2, 2016, and April 4, 2016 (see EC-23 [2-5-16], [4-7-16]). As such, the only date for which the claimant's attorney had not been compensated, and for which some description of services was provided, was May 3, 2016.

In light of the sparse detail provided in the OC-400.1 form and the fact that the claimant's attorney sought fees for previously-compensated services, weighed against the fact that the claimant is entitled to continuing awards at the weekly rate of $690.00, the Full Board finds that the claimant's attorney is entitled to a fee of $450.00 for its services at the May 3, 2016, hearing, as it is the highest award permitted in the absence of a properly completed OC-400.1 form (see 12 NYCRR 300.17[d]).

CONCLUSION

ACCORDINGLY, the WCLJ decision filed May 6, 2016, MODIFIED to find that the claimant's attorney is entitled to a fee of $450.00 for its services at the May 3, 2016, hearing, but is otherwise affirmed. No further action is planned by the Board at this time.