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Workers' Compensation Board

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Case # 00128675
Date of Accident: 05/11/2001
District Office: NYC
Employer: Reuters America Holdings
Carrier: Insurance Co of North America
Carrier ID No.: W116008
Carrier Case No.: C375C636842-8
Date of Filing of Decision: 11/20/2017
Claimant's Attorney: Rosado, Apat & Dudley 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 17, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant was attached to the labor market subsequent to February 9, 2016, to July 29, 2016.

The Workers' Compensation Law Judge (WCLJ) found that there was insufficient evidence of attachment to the labor market.

The Board Panel majority modified the WCLJ decision and found that claimant had reattached to the labor market for the period of January 25, 2016, to February 9, 2016.

The dissenting Board Panel member would affirm the WCLJ.

The claimant filed an application for Mandatory Full Board Review on March 15, 2017, arguing that she was attached to the labor market from January 25, 2016, to August 13, 2016, and that awards for that period should be made at the rate of $400 per week.

The carrier did not file a timely rebuttal.

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

FACTS

On May 11, 2001, claimant, an executive assistant, injured her lower back removing a framed picture from the wall. This claim was established and claimant's average weekly wage was set at $935.48.

In a decision filed July 21, 2011, the WCLJ classified claimant with a moderate to marked permanent partial disability, found she had a 62.5% loss of wage earning capacity, and made awards from March 3, 2011, forward at the rate of $400.00 per week. The carrier sought administrative review and in a decision filed October 9, 2012, a Board Panel affirmed the WCLJ's permanency finding, but found that claimant had voluntarily removed herself from the labor market and rescinded awards after March 3, 2011.

The case was reopened to consider whether claimant had reattached to the labor market. In a decision filed on June 29, 2015, the WCLJ made awards for various periods, but on appeal, the Board Panel, in a decision filed April 28, 2016, found that the claimant had failed to show an attachment to the labor market and was not entitled to awards subsequent to March 3, 2011.

Claimant filed a C-258 (Claimant's Record of Job Search Efforts/Contacts) on September 5, 2015, documenting her search for work during the period from July 20, 2015, to August 6, 2015 (doc #25188321). On November 5, 2015, claimant filed a C-258 documenting her search for work from August 10, 2015, to August 27, 2015 (doc #25479319). On December 7, 2015, claimant filed a C-258, with attachments, documenting her search for work from October 19, 2015, to November 19, 2015 (doc #256238380). On January 25, 2016, claimant filed a C-258 documenting her search for work during the periods from August 28, 2015, to October 16, 2015, and from December 1, 2015, to December 10, 2015 (doc #258654297). On May 12, 2016, claimant filed a C-258 documenting her search for work during the period from December 10, 2015, to February 9, 2016 (doc #264550165).

On May 23, 2016, the claimant's attorney filed an RFA-1LC (Request for Further Action by Legal Counsel) to request a hearing to address whether claimant had reattached to the labor market.

At a hearing on July 29, 2016, the parties and the WCLJ agreed that the issue in controversy at that time was whether claimant was attached to the labor market from June 11, 2015, to July 29, 2016. Claimant submitted additional job search documentation covering the period from February 9, 2016, to July 29, 2016, consisting of C-258 forms and attachments totaling 255 pages (doc #268913430). The carrier's attorney argued that the carrier should be permitted the opportunity to review these additional documents before questioning claimant regarding the evidence. Claimant's attorney stated that the C-258 forms covering the period June 11, 2015, to February 9, 2016, which were already in the record, were sufficient to go forward with claimant's testimony, and that the carrier could be permitted the opportunity to review the additional evidence submitted at the hearing at a later time. The WCLJ stated that, "[w]e can also divide it up. If necessary, we can say there's reattachment supported as of June 11, 2015 with documentation to support attachment up until [February 9, 2016]" (transcript, 7/29/16 hearing, p. 9).

The claimant testified that she had last worked sometime in 2015, in a part time job handing out flyers from two to four hours per day. She had been searching for work using the internet and she had a couple of interviews since June 2015. Claimant was asked to read the first entry in her C-258, with a January 25, 2016, contact date but was unable to determine the name of the employer listed in the entry. She has applied for jobs online using Career Builder and Monster. She was applying for clerical, cashier, office assistant, and executive assistant jobs.

At the conclusion of the hearing, the WCLJ found that the claimant had not reattached to the labor market because she had not made a good-faith and sincere job search. The WCLJ found, after reviewing the claimant's job search documents, that she did not have reference numbers and there was no indication given if an application was taken. These findings were memorialized in a notice of decision filed on August 3, 2016. It is unclear from the record and the resulting decision whether the WCLJ considered the additional job search evidence submitted at the July 29, 2016, hearing (doc #268913430), and whether the finding of no labor market attachment applied for the entire period at issue, June 11, 2015, to July 29, 2016, or only from June 11, 2015, to February 9, 2016.

In her application for administrative review of the WCLJ's August 3, 2016, decision, claimant argued that she had established her attachment to the labor market as of January 25, 2016.

The carrier argued in rebuttal that the WCLJ decision should be affirmed in its entirety because the WCLJ fully considered the developed record and correctly found that the claimant had failed to demonstrate attachment to the labor market.

While claimant's application for administrative review was pending, at a hearing on January 18, 2017, the WCLJ found that claimant was attached to the labor market as of August 13, 2016, and made awards from August 13, 2016, to January 18, 2017, and continuing at the rate of $398.78 per week. The findings and awards made at the January 18, 2017, hearing are reflected in a decision filed January 23, 2017, and amended March 29, 2017, which indicated that no further action was planned by the Board. The WCLJ did not make any findings with respect to any periods prior to August 13, 2016, and neither party sought administrative review of the WCLJ decision.

LEGAL ANALYSIS

At the underlying hearing on July 29, 2016, it was initially agreed that the issue in controversy was whether claimant was attached to the labor market from June 11, 2015, to July 29, 2016. However, the carrier subsequently objected to the introduction of job search evidence not previously submitted, covering the period from February 9, 2016, to July 29, 2016, consisting of C-258 forms and attachments totaling 255 pages. It was suggested that the period from February 9, 2016, forward be held in abeyance and addressed at a subsequent hearing after the carrier had the opportunity to review the new evidence. The WCLJ did not make a clear ruling on the issue, but stated that, "[w]e can also divide it up. If necessary, we can say there's reattachment supported as of June 11, 2015 with documentation to support attachment up until [February 9, 2016]." The WCLJ ultimately concluded that the claimant had not reattached to the labor market, but it is unclear from the record and the resulting decision whether the WCLJ considered the additional job search evidence submitted at the July 29, 2016, hearing, and whether the finding of no labor market attachment applied for the entire period at issue, June 11, 2015, to July 29, 2016, or only from June 11, 2015, to February 9, 2016.

While the Board Panel majority found that claimant was attached to the market from January 25, 2016, to February 9, 2016, they made no express findings with respect to the period from February 9, 2016, to August 13, 2016. At the hearing on January 18, 2017, the WCLJ found that claimant was attached to the labor market as of August 13, 2016, but made no findings with respect to the period from February 9, 2016, to August 13, 2016.

Therefore, because it does not appear that the issue of whether claimant was attached to the labor market during the period February 9, 2016, to August 13, 2016, has ever been determined, or that claimant's job search evidence covering that period (doc #268913430) has ever been considered, awards for that period are hereby held in abeyance and the matter remitted to the trial calendar for the WCLJ to consider the issue of labor market attachment during that period.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed August 3, 2016, is MODIFIED to find that claimant reattached to the labor market for the period from January 25, 2016, to February 9, 2016, and to hold awards in abeyance during the period from February 9, 2016, to August 13, 2016, and return the matter to the trial calendar for the WCLJ to consider the issue of labor market attachment during that period. In all other respects, the decision is affirmed. The case is continued.