By: Robert E. Beloten, Chair
* This decision also pertains to the following case(s): 80504343.
The Full Board at its meeting on January 26, 2010, considered the above captioned cases for mandatory Full Board Review of the Board Panel Memorandum of Decision (MOD) filed April 16, 2009.
In the MOD filed April 16, 2009, the majority of the Board Panel, upon review of the entire record, affirmed the Workers' Compensation Law Judge's (WCLJ) reserved decision filed September 10, 2008, finding that claimant was entitled to awards after December 23, 2007, when the plant where he worked closed, as the evidence demonstrated that his employment limitations due to his disability were a cause of his subsequent inability to obtain employment.
The dissenting member voted to reverse the decision of the WCLJ, indicating that the case should be remanded for further development of the record on the following issues: his labor market attachment, his efforts to find work within his restrictions after December 23, 2007, and whether the diminution of wages were caused by factors other than his disability.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The issue presented for Full Board Review is whether claimant remained attached to the labor market after the plant where he worked closed.
The claimant, who is now 38 years old, began working as a machine operator for American Axle in April 1994 where he continued to work until he was laid off in December 2007, when the plant closed. He is a member of the United Auto Workers Union.
While working at American Axle, claimant had the two instant accidents. On February 2, 2003, he injured his back while pulling a 500-600 pound gondola whose wheels had become stuck (WCB # 8030 3669). His recurring back symptoms were related to sacroiliac joint pain and a disc herniation at L4/L5. Through February 16, 2005, he was awarded 18.8 weeks of lost time benefits due to his back disability.
On February 16, 2005, claimant sustained an injury to his neck when he slipped and hit his head on the floor (WCB # 8050 4343). He was diagnosed with additional disc herniations and again was treated conservatively. Various awards were made. On August 30, 2005, he returned to light duty, earning full wages.
Two years later, the claimant began to lose time from work again due to his neck disability and was awarded benefits from June 26, 2007 to September 4, 2007. He returned to work again with restrictions. Seven months later, on April 7, 2008, claimant filed form RFA-1, indicating that he was out of work and not receiving benefits. Thereupon both cases were reopened to travel together on the issue of further causally related lost time.
At the time of the reopening, the medical evidence showed that on February 27, 2008, claimant had treated with Dr. Capicotto for neck and low back pain. MRI studies of the cervical spine showed a disk herniation at C5/6 and a probable herniation at C4/5 and C6/7. He noted that claimant has a marked permanent disability, is seriously considering surgical intervention particularly in the cervical spine, has been laid off but is looking for work, and has work restrictions of a ten pound lifting limit, no repetitive bending, no working on machines that vibrate, and no climbing on ladders and no overhead work. In a report for a subsequent examination on April 9, 2008, Dr. Capicotto wrote that claimant has a moderate permanent disability for both injuries, is past maximum medical improvement, is laid off and not working, and would like to hold off on surgery as long as possible.
At the joint hearing held on July 1, 2008, the claimant testified that he stopped working for the employer as a machine operator on December 23, 2007, when the employer ceased its production operations and he was laid off. He has not held any job since being laid off. The employees were offered a "buyout," and he had until July 18, 2008 to accept the offer ($140,000.00). After being laid off, he collected "holiday pay and stuff" and started collecting unemployment benefits of $405 a week gross on January 11, 2008. He did go "on strike" with his fellow UAW Union (Local 424) from February 25, 2008, to about May 25, 2008.
The claimant testified further that he was currently qualified for a special trade program (TRA and TAA) to help get his insurance and unemployment continued for up to a year and a half while he returns to school to become a respiratory therapist. He had received vocational assistance at a One-Stop office, which was in the same location as the unemployment office.
Claimant testified that in order to continue receiving his unemployment benefits, he had to continue to look for work. He looks for work in the newspaper and either calls or "most of the time I just go to them and show up and ask" if there is any work. He filled out a VESID application two months earlier, but he had no idea how the process worked. He had a list of all of the employers he had contacted, but most were not hiring due to the economy, and he was unable to do some of the jobs because of his inability to lift and carry things. He prepared a resume approximately two or three months prior to the hearing, but he had not given it to any prospective employers.
As to his education, claimant testified that he attended approximately two years of college courses between 1990 and the present, but has not earned a degree. He testified that he is signed up for classes at Genesee Community College, and he is waiting to see if his application in the special trade program was approved.
Claimant testified that he continued to treat with Dr. Capicotto (an orthopedist) "every once in a while," and he saw Dr. Cichocki (a chiropractor) on a symptomatic basis, although he had not needed any treatment for the past two months. He had permanent work restrictions for his neck, which had been in place since he returned to work. The restrictions included no lifting over fifteen pounds, no overhead work, no vibrating equipment, and no repetitive lifting. He had previously had restrictions for his back, but he "let those expire because [his] back wasn't really bothering [him]" after he returned from his neck injury. His neck was better than it had been in a long time because he was not doing anything "besides yard work." He still plays golf, but it is not easy.
At the conclusion of the hearing, a copy of the claimant's job search notes was submitted into the record. It is noted of the eighteen entries listed (eleven from June 2008 and seven undated) the result for seventeen of the entries was that the employer was not hiring at that time. Only one entry, for a labor position with a construction company, indicated that the claimant was "not qualified to do heavy labor." The types of jobs being sought were listed as "production," "anything," "labor," "technician," and "general." Copies of the claimant's resume (wherein he lists his injuries) and an additional handwritten list of job search activities in "production" or "anything" (five employers) were subsequently submitted by the claimant's attorney on July 31, 2008.
On September 10, 2008, the WCLJ issued a reserved decision in both cases wherein he found that a finding as to permanency is premature; that claimant had remained attached to the labor market; that there was no compensable lost time from December 5, 2007, to January 11, 2008; and that there was no medical evidence for the period January 11, 2008, to February 27, 2008. However, he made awards of $400 a week for a temporary partial disability pursuant to Workers' Compensation Law (WCL) § 25(1)(f) from February 27, 2008, to September 8, 2008, and continuing.
Following the filing of the reserved decision, the carrier had claimant examined by its consultant, Dr. Anthony Leone on October 2, 2008. In a report dated October 13, 2008, Dr. Leone wrote that overall claimant has a moderate permanent partial disability (2/3 attributable to the neck and 1/3 attributable to the lumbar spine); that his overall disability is materially and substantially greater due to the prior injuries to his back; and that claimant is attending Genesee Community College full time for retraining and education.
As early as February 27, 2008, the medical reports show that claimant has a permanent partial disability. On April 9, 2008, Dr. Capicotto indicates that it is a moderate permanent disability, and Dr. Leone, the carrier's consultant, agreed with this assessment on October 13, 2008.
Additionally, the record shows that the employer, effective December 23, 2007, ceased operations, and therefore could no longer provide this partially disabled claimant with a light duty job which would accommodate his severe work restrictions. Accordingly, claimant's departure from his employment on December 23, 2007, could neither be deemed a voluntary retirement as claimant did not choose to leave his employment nor could it be deemed an involuntary retirement as his work-related disability was not the cause of his departure.
"[I]t is now settled that '[w]here a claimant has a permanent partial disability but there has been no finding of involuntary retirement, the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions' (cites omitted)" (Matter of Hare v Champion International, 50 AD3d 1254 , lv dismissed, 11 NY3d 863 ). Likewise, a claimant who is temporarily partially disabled must also demonstrate an attachment to the labor market to be entitled to continuing compensation benefits (see Matter of Bacci v Staten Island University Hospital, 32 AD3d 582 ). A partially disabled person need only seek employment within his or her medical restrictions (Matter of Sanchez v Consolidated Edison Co. of N.Y., Inc., 40 AD3d 1153 ) and for which he or she is qualified (see Matter of St. Francis Construction Co., 2009 NY Wrk. Comp. 30705539). 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 Medical Associates, 18 AD3d 1093 ).
Subsequent to February 27, 2008, claimant testified as to collecting unemployment benefits, receiving vocational assistance at a One-Stop office, returning to school for training in respiratory therapy through a special trade program (TRA/TAA), applying with VESID, and making an independent search for jobs.
Claimant testified that he began receiving unemployment benefits of $405 a week on January 11, 2008.
In New York State, benefits through an unemployment insurance system provide financial support "to workers who have lost their jobs through no fault of their own" (Labor Law § 502). To be entitled to benefits, unemployed workers must file a claim and meet, among other qualifications, the following: "is able to work and available for work" (Labor Law § 527; 590). Benefits are paid "only to a claimant who is totally unemployed and who is unable to engage in his usual employment or in any other for which he is reasonably fitted by training and experience" (Labor Law § 591). Conversely, "[n]o benefits shall be payable to any claimant who is not capable of work or who is not ready, willing and able to work in his usual employment or in any other for which he is reasonably fitted by training and experience" (Labor Law § 591).
An unemployed claimant, in order to maintain his weekly eligibility to receive benefits, must participate in reemployment services, such as job search assistance services (Labor Law § 591). If an unemployed claimant is receiving workers' compensation benefits under WCL § 15(6), unemployment benefits "are limited to the difference between the amount of workers' compensation benefits and one hundred percent of the claimant's average weekly wage" (Labor Law § 591).
While simply the application for or receipt of unemployment benefits is not determinative of an attachment to the labor market, documentary evidence of a claimant's active participation in one of the New York State Department of Labor's reemployment services is.
One-Stop Career Centers
The federal Workforce Investment Act of 1998 (Pub L 105-220, 29 USC § 2801, et seq.), established a nationwide network of One-Stop Career Centers designed to provide multiple services, including job search and vocational retraining assistance, to all workers, including those with disabilities.
In New York State, the Department of Labor operates a One-Stop Center in every county. These One-Stop Centers offer free services to people seeking employment, including training designed to provide marketable job skills, career counseling services designed to give workers the skills necessary to successfully search for a job, and matching workers with potential employers. Job seekers are guided to the New York's Job Bank and may enter resumes online. Once a resume is in the One-Stop system, it is regularly matched to determine if suitable work is available, with job offers and responses recorded in the system. One-Stop Centers provide letters to workers' compensation claimants who request them, verifying that they are registered in the Department of Labor's system. Similar assistance is also available at the Department of Labor's Division of Employment and Workforce Solutions (DEWS) locations.
In the instant case, claimant testified that he had received vocational assistance at a One-Stop office. Documentary evidence that a claimant is actively participating in the services provided by a One-Stop office in order to return to work within his or her restrictions is evidence of an attachment to the labor market. Active participation means (1) calling for an appointment; (2) attending an orientation session; (3) meeting with a One-Stop counselor to develop a resume; (4) registering a resume in the One-Stop system; (5) following up to determine whether there were any job matches; and (6) following up on all job referrals and matches.
The Trade Adjustment Assistance (TAA) is a federal program created under the Federal Trade Act of 1974 and 2002 (19 USC § 2102 et seq.) to assist workers who have lost their jobs due to increased imports or production shifts to a foreign country. New York State administers the Federal TAA program for the United States Department of Labor and coordinates the program through its One-Stop Career Centers. New York has similar programs called the Manpower Training Act (Labor Law, Article 23-A) and the Worker Adjustment Act (Labor Law, Article 24).
The TAA program offers benefits such as rapid response assistance, re-employment services, job search allowances, moving assistance, training, or on-the-job training. Other benefits may include the Trade Readjustment Allowance (TRA) which is weekly income support for up to one hundred and four weeks, generally the same amount as unemployment insurance benefits, for workers who are in approved training and who have exhausted their unemployment benefits. A Health Coverage Tax Credit (HCTC) of 65 % is also available on certain health insurance premiums paid by approved workers.
Claimant testified that TAA and TRA assistance is available at the One-Stop Office he visited. Through that program he has signed up for classes at Genesee Community College to become a respiratory therapist, another career path. He is waiting to hear about his acceptance.
Receiving income benefits or health coverage tax credits pursuant to TRA or HCTC is not evidence of an attachment to the labor market. However, documentary evidence of active participation in a retraining program through TAA to secure a job within a claimant's disability restrictions is evidence of an attachment to the labor market. Also documentary evidence showing enrollment and attendance full time as a student in an accredited educational institution in order to pursue employment within his work restrictions is evidence of an attachment to the labor market (Matter of Dooley v NYS Bronx Children's Psychiatric Hospital, 56 AD2d 680 [1977).
Claimant testified that at the One-Stop office he filled out an application to work with VESID (Vocational and Educational Services for Individuals with Disabilities).
Education Law § 1004(2) places upon the New York State Education Department two of the following duties among others in providing vocational rehabilitation:
"2. To provide vocational rehabilitation services directly or through public or private instrumentalities for handicapped persons (excepting blind persons and, with respect to physical restoration services, those persons who are entitled to such services pursuant to the workmen's compensation law and the volunteer firemen's benefits law) whose vocational rehabilitation the department determines after full investigation may be satisfactorily achieved. In the course of its investigation of an individual applicant's vocational rehabilitation potential the department may conduct an extended evaluation program including utilization of such vocational rehabilitation services as it deems necessary.…
6. To cooperate in the operation of this article with the state agency or agencies administering the state's public assistance program, workmen's compensation program, the department of health, mental hygiene, the federal agencies charged with the administration of the federal social security act and the federal fair labor standards act or other appropriate federal legislation and with other public and private agencies providing services related to vocational rehabilitation, and with the state system of public employment offices in the state, making maximum feasible utilization of the job placement and employment counseling services and other services and facilities of such offices, and to issue such certifications as are required or indicated thereby."
As a complement to the duties of the Department of Education's VESID, WCL § 15(9) provides in part:
An employee, who as a result of injury is or may be expected to be totally or partially incapacitated for a remunerative occupation and who, under the direction of the state education department is being rendered fit to engage in a remunerative occupation, may receive additional compensation necessary for his rehabilitation, not more than thirty dollars per week of which may be expended for maintenance. Such expense and such of the administrative expenses of the state education department as are properly assignable to the expenses of rehabilitating employees entitled to compensation as a result of injuries under this chapter, shall be paid out of a special fund …"
Such fund is the vocational rehabilitation fund which in part receives funding from employers and insurance carriers who must pay into the fund $2000 in every injury case resulting in death in which there are no persons entitled to compensation.
In addition to rehabilitation services through VESID, claimants may receive rehabilitation by participating in Board approved rehabilitation programs (WCL § 15[v]; WCL 13-j; WCL § 35).
While an employer or carrier may recommend rehabilitation services (WCL § 13-a), participation in such services is not required in order to receive compensation benefits (Matter of Kalevas v J.H. Williams & Co., 27 AD2d 22 , affd 20 NY2d 812 ). However, documentary evidence of voluntary, active and continued participation in such services in order to return to work within the work restrictions demonstrates an attachment to the labor market (see Matter of Acme Bus Company, 2009 NY Wrk. Comp. 40704511).
In that the instant claimant has only filled out paperwork in regard to VESID services, no labor market attachment has been demonstrated in regard to VESID services at this point.
Independent Job Search
Claimants seeking to gain employment sometimes conduct independent job searches by asking friends for job leads, looking in the classified ads of periodicals such as newspapers, responding to jobs posted in storefronts and on bulletin boards, searching the internet, sending letters or resumes to prospective employers, inquiring in person at local businesses, and filling out applications. Such efforts are usually sporadic, lack documentation, and often do not result in a disabled worker finding work within his work restrictions.
While an independent job search is encouraged, absent documentation verifying a timely, diligent, and persistent outreach to potential employers for work within the medical restrictions, there is no credible evidence upon which to find an attachment to the labor market. 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.
In the present case, claimant made eighteen cold contact inquiries for employment at various companies, only to be told they were not hiring, he was not qualified, no jobs were available, or that no job was available to accommodate his disabilities. The documentary evidence verifying his independent search lacked appropriate dates and the necessary specificity to support a finding of a timely, diligent and persistent search for work within his restrictions and qualifications.
Nonetheless, while claimant's evidence of an independent job search alone is not sufficient to support a finding of a good faith job search, claimant's active and continued participation in any one of the following would be sufficient to show a good faith job search and/or attachment to the labor market: (1) one of New York State's Department of Labor's reemployment services, (2) the services offered by a One-Stop Career Center, (3) a retraining program, (4) a rehabilitation program by VESID or other board approved rehabilitation program, (5) a job service commonly utilized to secure work within a specific industry, or (6) enrollment and full time attendance in an accredited educational institution to pursue employment within the work restrictions.
Based upon the above, the Full Board finds that on February 27, 2008, claimant had a permanent partial disability with severe work restrictions, that such work restrictions limited his ability to find gainful employment after his lay off, and that he remained attached to the labor market by actively participating in the employment services at the One-Stop Career Center and pursuing TAA retraining for respiratory therapy through attendance at a college.
Accordingly, the Full Board votes to MODIFY the WCLJ reserved decision filed September 10, 2008, finding that claimant has a permanent partial disability and holding all awards subsequent to February 27, 2008, in abeyance pending submission of documentary evidence pertaining to the dates of his participation at the One-Stop Career Center, acceptance into the TAA retraining program, and full time enrollment and attendance at college for a career in respiratory therapy after which awards should directed as appropriate.