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Workers' Compensation Board

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Case # G0520449
Date of Accident: 10/20/2011
District Office: NYC
Employer: Tully Construction Co Inc
Carrier: Arch Insurance Company
Carrier ID No.: W087381
Carrier Case No.: TLYC-000015
Date of Filing of Decision: 01/04/2018
Claimant's Attorney: Joseph A. Romano Law Offices
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 22, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant reattached to the labor market.

The Workers' Compensation Law Judge (WCLJ) found that the claimant had reattached to the labor market as of February 9, 2016, to August 11, 2016, and made awards from that date forward at the rate of $614.23 per week. The WCLJ also awarded attorney's fees in the amount of $6,000.00 to the claimant's attorney.

The Board Panel majority modified the WCLJ decision to find that the claimant did not reattach to the labor market. The Board Panel majority found no compensable lost time for the period October 29, 2015, forward and rescinded the claimant's attorney's fee.

The dissenting Board Panel member would find that the claimant was attached to the labor market as of February 9, 2016, due to his independent work search.

The claimant filed an application for Mandatory Full Board Review on March 31, 2017, arguing that he has demonstrated attachment to the labor market through his independent job search and attending ACCES-VR.

The carrier filed a rebuttal on April 26, 2017, contending that the decision of the Board Panel majority is correct as a matter of fact and law.

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

FACTS

This case is established for a back injury resulting from an October 20, 2011, accident. The claimant's average weekly wage has been set at $1,842.70.

At a hearing held on September 5, 2012, the claimant testified that at the time of the October 20, 2011, accident, he was a member of a union and he had gotten the job which he had on October 20, 2011, through the union.

At a hearing held on October 28, 2015, the claimant testified that he was born in Chicago, he was an U.S. citizen, he went to Mexico when he was one-year-old and returned to the U.S. when he was fourteen. He didn't go to school in the U.S. and Spanish was his native language. He could speak some English, but could not read or write English. He testified that he had only gone through the 5th grade in Mexico, he had never worked in an office, he did not own a computer, and he had never taken a computer class. He did not have a driver's license and did not own a car.

In a decision filed on November 2, 2015, the WCLJ classified the claimant as having a permanent partial disability and a loss of wage earning capacity (LWEC) of 50%. The WCLJ found that the claimant was not currently entitled to wage loss benefits because he was not attached to the labor market.

Claimant filed a C-258 form (Claimant's Record of Job Search Efforts/Contacts) with the Board on May 20, 2016, which documented that he had applied for fifty-one jobs between February 9, 2016, and May 19, 2016, either in person, on-line, or by telephone. The claimant provided the date of contact, the types of employment applied for by him, the method of contact, and in some instances, the phone number, email address or general location of the employer, and the result of the contact.

A second C-258 form was filed on May 20, 2016, wherein the claimant indicated that he applied for thirteen jobs between "Feb and April," of an unspecified year. The claimant provided the types of employment applied for on the form. The form did not indicate the method of contact, except for two entries that indicated the claimant called two of the employers, and the employers' names and addresses were not listed. There was no indication of the result of the contact.

A C-258 form was filed on May 23, 2016, wherein the claimant indicated that he applied for five jobs from September 16, 2015, to December 5, 2015. The claimant did not include the business addresses or the names of the contact persons at the various employers.

A C-258 form was filed on August 10, 2016, wherein the claimant indicated that he applied for twenty-one jobs between June 1, 2016, and July 18, 2016. The claimant indicated the type of employment, the type of contact, and the result of the contact. The claimant did not provide the employers' names and addresses in most of his entries and only provided three telephone numbers and two contact person names.

The claimant's appointment letter for ACCES-VR orientation in White Plains on July 6, 2016, was filed with the Board on August 10, 2016.

At a hearing held on August 10, 2016, the claimant testified that he was looking for work "over the internet or walking" and that he was looking for work doing construction or gardening (p. 3). He went to his ACCES-VR orientation appointment and had an appointment to go back on August 18, 2016. He was taking English classes two days a week for two hours per day. He had not done any job searches following his July 6, 2016, meeting at ACCES-VR because he did not pay his phone bill and could not communicate with them. The names "San Gabriel" and "Home Depot" listed on his C-258 forms indicated locations where he would go and wait to be hired as a day laborer. The claimant clarified that he did apply at a Home Depot store for a job before he went outside to wait to be hired as a day laborer. He could not read or write English.

At the conclusion of the August 10, 2016, hearing, the WCLJ found no causally-related lost time for the period October 29, 2015, to February 9, 2016, and that the claimant had reattached to the labor market as of February 9, 2016. The WCLJ made awards from February 9, 2016, to August 11, 2016, and continuing at the rate of $614.23 per week and awarded claimant's attorney a fee of $6,000.00. These findings were memorialized in a notice of decision filed on August 15, 2016.

In the carrier's applications for administrative review of the decision filed on August 15, 2016, it argued that the claimant had not submitted sufficient credible evidence of labor market attachment.

The claimant filed two rebuttals in which he argued that the WCLJ decision should be affirmed in its entirety because he was engaged in meaningful educational programs and was performing a sufficient work search.

LEGAL ANALYSIS

Attachment to the labor market can be demonstrated by credible documentary evidence showing that the 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 evidence fails to establish that the claimant has reattached to the labor market through his independent job search. The corroborating documentary evidence needed for an independent job search must verify a timely, diligent, and persistent outreach to potential employers for work within a claimant's medical restrictions in order to constitute credible evidence upon which to find an attachment to the labor market. A review of the C-258 forms submitted by the claimant indicates that the forms were not fully completed and contained only minimal information, the forms were missing specific information about the various employers, the applied for jobs, and the outcome of the contacts. In addition, at least six of the jobs listed involved the driving of a car and the claimant had previously testified that he does not have a driver's license. A review of the record indicates that the claimant's efforts to seek employment do not constitute a good-faith search for work which he was actually qualified to perform. Thus, the claimant's independent work search evidence is insufficient to show labor market reattachment.

The Full Board notes that had claimant's C-258 forms contained all the information required by American Axle, that evidence may have been sufficient to support a finding that claimant had reattached to the labor market. It is the responsibility of the claimant, as well as claimant's counsel, to ensure that documentary evidence of labor market attachment complies with the requirements of American Axle. Attorneys and licensed representatives should counsel their clients concerning the importance of submitting sufficient documentary evidence of labor market attachment, including C-258 forms, and should assist their clients to complete the C-258 accurately and completely. Claimant's counsel in this matter are reminded of their duty to assist their clients in submitting evidence of labor market attachment which meets the requirements of American Axle. That the C-258s submitted by claimant's counsel in this matter lack much of the information required by American Axle suggests that counsel may have failed to provide adequate guidance to their client concerning how to document his work search.

Next, a claimant can reattach to the labor market when he or she is actively participating in, among other things, a job-location service - such as One-Stop Career Centers - or Board-approved vocational rehabilitation. A review of the record indicates that the claimant went to orientation at ACCES-VR on July 6, 2016, and had another appointment scheduled for August 18, 2016. American Axle requires the claimant to not only contact, but to "actively participate" with ACCES-VR in order to demonstrate labor market attachment. There is no evidence that claimant has enrolled in a vocational rehabilitation program through ACCES-VR. The Board has previously found that a claimant's limited contact, such as one meeting, with ACCES-VR does not support a finding that he/she was actively participating with a vocational service (see Matter of Shoprite Supermarkets Inc., 2016 NY Wrk Comp 0741918). Therefore, the claimant's interaction with ACCES-VR as of the time of the August 10, 2016, hearing was insufficient to demonstrate active participation with ACCES-VR.

Therefore, the Full Board finds that the preponderance of the evidence supports a finding that the claimant has not reattached to the labor market.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed August 15, 2016, is MODIFIED to find that the claimant did not reattach to the labor market; claimant had no compensable lost time from October 29, 2015, to August 11, 2016; all awards and attorney's fees made in the WCLJ's August 15, 2016, decision are rescinded; and the direction to make a deposit into the Aggregate Trust Fund is rescinded. No further action is planned by the Board at this time.