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Workers' Compensation Board

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Case # G1296690
Date of Accident: 04/22/2015
District Office: NYC
Employer: Mt. Sinai Hospital
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: FOJP-023228
Date of Filing of Decision: 11/20/2017
Claimant's Attorney: Ugalde & Rzonca 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 January 23, 2017.

ISSUE

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

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

The Board Panel majority affirmed the WCLJ.

The dissenting Board member would find the claimant was not attached to the labor market because she failed to demonstrate active participation after her initial efforts of enrolling in educational classes and training opportunities.

The carrier filed an application for Mandatory Full Board Review on February 14, 2017, arguing that claimant failed to demonstrate active participation in the labor market and failed to provide any documentary evidence of her efforts to attach to the labor market.

The claimant filed a rebuttal on March 16, 2017, arguing that she was attached to the labor market.

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

FACTS

The claimant had a work-related injury to the neck, back, left shoulder and left knee that occurred on April 22, 2015, while working as a nursing attendant.

At a hearing held on April 13, 2016, the carrier raised the issue of labor market attachment, and the WCLJ scheduled a hearing for the claimant's testimony.

At a hearing on June 28, 2016, the claimant testified she met with a counselor at the Board, who referred her to Workforce One, and she subsequently met with a counselor at Workforce One on April 19, 2016. Her treating physician, Dr. Baum, gave her clearance to return to work on May 13, 2016, she submitted the paperwork to her employer, and the employer denied her request to return to work. She was terminated by her employer. The claimant stated that she went to Workforce One and took a resume workshop and applied for a grant to go to school to be a medical assistant. She met with her union, and was able to enroll in classes for computers and Spanish, but she had not begun the classes and did not have any documentation concerning the classes. She became certified in "baby nursing" in September or October of 2015, which she believes will be within her restrictions (transcript, 6/28/16 hearing, p. 6-7).

On cross-examination, the claimant testified that she attended the resume writing class, but she did not have any documentation to confirm her attendance, and she did not have her resume completed yet. The claimant also testified she had not applied for any positions.

The parties made summations on the record, and the WCLJ ruled the claimant was attached to the labor market, but recommended that the claimant make a stronger effort in the future by submitting a resume, and supporting documentation with the information about the positions she applied for, and also confirmation of attendance at classes. The WCLJ also stated to the claimant, "you're about as minimally attached as anybody I could ever find because it's just not, it is not showing a significant attachment. It is showing you're doing something, but you really have to make a greater effort." The findings and awards made at the June 28, 2016, hearing are reflected in a decision filed July 5, 2016.

The transcript of the June 28, 2016, hearing indicates that claimant produced documentation regarding her participation with One-Stop which was viewed by the parties and the WCLJ. However, it does not appear that the documentation was ever formally admitted into evidence and it was never scanned into the Board's Electronic Case Folder for this claim.

In its application for administrative review, the carrier argued that the claimant's work search did not fulfill the legal requirements of the Matter of American Axle, 2010 NY Wrk Comp 80303659, because she failed to conduct any employment search, failed to produce her resume, failed to take any classes and her contact with Workforce One was insufficient to satisfy the requirement of active participation.

The claimant filed a rebuttal, maintaining that she fulfilled the requirements of American Axle by actively participating at Workforce One as well as pursuing other avenues of employment. The claimant testified she met with a counselor at the Board, attended three workshops at Workforce One, took a test to go to school to become a Medical Assistant, became certified as a baby nurse and enrolled in Spanish and computer classes.

Claimant was examined by the carrier's consultant, Dr. Weiss, on March 2, 2017. In his IME-4 report, Dr. Weiss stated that claimant reported she had been working part-time at a restaurant since 2016 and had been babysitting.

LEGAL ANALYSIS

A claimant with a temporary partial disability must look for work within the limits of his or 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]).

Here, the claimant was determined to be temporarily partially disabled and was notified at the hearing held on April 13, 2016, of her obligation to remain attached to the labor market.

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).

Active participation at a One-Stop Career Center means calling for an appointment, attending an orientation session, meeting with a One-Stop counselor to develop a resume, registering a resume in the One-Stop system, maintaining contact with the One-Stop Career Center to determine whether there were any job matches, and following up on all job referrals and matches (id.).

In the present case, the claimant testified that she met with a counselor at Workforce One on April 19, 2016, and subsequently went to Workforce One on two subsequent occasions to attend a resume workshop and apply for a grant to go to school to be a medical assistant. However, claimant testified that as of the June 28, 2016, hearing, she had not completed her resume and had not applied for any positions. Even assuming, in the absence of any documentary evidence in the record to corroborate claimant's testimony, that claimant credible testified regarding her participation with Workforce One, her efforts did not constitute sufficiently "active participation" with a One-Stop Career Center to satisfy American Axle. Most notably, although she was found to only be partially disabled, claimant applied for no jobs between the hearing on April 13, 2016, and her testimony on June 28, 2016.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant has not demonstrated an attachment to the labor market.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed July 5, 2016, is MODIFIED to find that claimant was not attached to the labor market, to find that she had no causally related lost time from April 14, 2016, to June 29, 2016, and to rescind attorney's fees. The case is continued to consider whether claimant has returned to work and is entitled to reduced earnings benefits.