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Workers' Compensation Board

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Case # G1202663
Date of Accident: 12/09/2014
District Office: Albany
Employer: City of Newburgh
Carrier: NY Municipal WC Alliance
Carrier ID No.: W848139
Carrier Case No.: CNEW-021-14
Date of Filing of Decision: 11/21/2017
Claimant's Attorney: Ouimette Goldstein & Andrews LLP
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on October 17, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed February 8, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant was attached to the labor market as of September 26, 2016.

The Workers' Compensation Law Judge (WCLJ) found that the claimant was not attached to the labor market because he did not perform his own work search and instead delegated this responsibility to his family in a manner that was more than merely seeking assistance from relatives.

The Board Panel majority affirmed the WCLJ decision.

The dissenting Board Panel member would find that the claimant was attached to the labor market, and would reverse the WCLJ's findings.

The claimant filed an application for Mandatory Full Board Review on March 6, 2017, arguing that he performed a sufficient work search, and the fact that the claimant needed help to perform it is not relevant. The carrier's rebuttal asserts that the Board Panel majority correctly determined that the claimant did not perform a meaningful, diligent and persistent search for work.

The carrier filed a rebuttal on March 28, 2017, asserting that the Board Panel majority correctly determined that the claimant did not perform a meaningful, diligent and persistent search for work.

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

FACTS

Claimant, a sanitation worker, was injured on December 9, 2014, when he slipped and fell on ice. This claim is established for work-related injuries to the low back and left shoulder. During the hearing on March 8, 2016, the carrier raised the issue of labor market attachment after the claimant was found to have a partial disability. The case was continued for the claimant's testimony on labor market attachment, but that testimony did not occur until the hearing held on September 26, 2016.

At the September 26, 2016, hearing, the claimant, through a Spanish interpreter, testified that he can speak some English, but he cannot read or write it. The claimant admitted that he does not know how to use a computer, so his granddaughter helped him put together his work search documents. The claimant explained that his granddaughter filled out his work search log, submits his applications, and she discussed each entry with him in Spanish.

With regard to ACCESS-VR, the claimant testified that his daughter-in-law helped him complete the application by explaining each of the forms to him. At the time he applied for ACCESS-VR services, the claimant was treating with a chiropractor who said he cannot work. On cross-examination, the claimant explained that his daughter-in-law told him the questions that were on the application, and he told her his answers. On the day the claimant filled out the application, he could not walk, stand or sit, so ACCESS-VR said they could not help him because of his disability. The claimant admitted he never contacted ACCESS-VR and told them that he was now doing better.

On further cross-examination, the claimant confirmed that his granddaughter helps him find jobs to apply for and his daughter-in-law filled out the C-258. The claimant admitted that he does not know whether the places he submitted applications to actually had open positions. The claimant confirmed he was present when these job applications were completed and submitted.

With regard to specific applications, the claimant admitted that he applied for a jeweler's apprentice position despite having no prior experience in the jewelry trade. The claimant also applied for a job as a production assistant, but he did not know the requirements for that job. The claimant applied for jobs as a food service worker and in maintenance, despite not knowing what the job involved. The claimant testified that he has a commercial driver's license and is able to drive a fork lift. The claimant then admitted he applied for a shipping and receiving clerk position at a car dealership despite not being able to read or write English, nor did he know the job's requirements. The claimant did not know what a dent wizard PDR trainee does even though he applied for this job.

The claimant testified that he worked for the employer for 15 years, and he admitted that he filled out the employer's application in English.

The Board file contains several C-258 (Claimant's Record of Job Search Efforts/Contacts) forms documenting the claimant's work search activities. The majority of the attachments to these forms are confirmation e-mails from indeed.com, an employment website. Attached to the C-258 filed on September 27, 2016, is ACCESS-VR's September 20, 2016, letter that confirms the claimant was originally approved for services based upon his application, which included his medical records. However, the letter indicates that upon speaking with the claimant, he told the counsellor that his condition was worsening, so he could not work anymore, and he submitted supplemental medical reports to show this.

After hearing the claimant's testimony, the WCLJ made a finding that the claimant was not attached to the labor market because he did not credit his testimony that he was an active participant in his work search. The WCLJ also determined that the claimant failed to produce any evidence that he was actively pursuing these jobs, and the claimant represented himself as being unable to work with ACCESS-VR. The findings made at the September 26, 2016, hearing are reflected in a decision filed September 29, 2016.

The claimant requested administrative review, asserting that he performed a meaningful, diligent and persistent search for work, and he was entitled to benefits because he was attached to the labor market.

The carrier filed a rebuttal asking that the WCLJ's finding that claimant was not attached to the labor market be affirmed.

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).

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 submitted documentary evidence of a search for work that was both sincere and diligent. The claimant listed a multitude of employer contacts, and included printouts of the application acknowledgements that he received from indeed.com and/or from the prospective employers. The fact that the claimant received assistance from family members in applying for these jobs is not dispositive as the claimant has a language barrier that prevents him from personally handling this aspect of this claim. Regardless of who submitted the applications on his behalf, the applications themselves clearly set forth that he was the individual who was seeking work within his restrictions.

In addition to the claimant's independent search for work, there is evidence in the record that supports the finding that the claimant was actively involved with ACCES-VR during the period at issue, and that his participation with this entity was terminated when his medical condition rendered him unable to successfully utilize the services offered. Despite the foregoing, the claimant continued to actively seek work through his independent job search efforts.

Therefore, the Full Board finds that the claimant has shown an ongoing attachment to the labor market during the period at issue.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed September 29, 2016, is MODIFIED to find that claimant produced sufficient evidence of ongoing attachment to the labor market. The case is restored to the trial calendar for the WCLJ to make appropriate awards for the period from March 9, 2016, forward. The case is continued.