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Workers' Compensation Board

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Case # G0218238
Matter of Advance Auto Parts
2014 NY Wrk Comp G0218238

BOARD PANEL DECISION

By: Board Members Dudley, Finnegan and Williams

Ruling:

By a Memorandum and Order decided and entered July 3, 2014, the Appellate Division, Third Department, dismissed the Board Panel's January 3, 2012, decision, reversed the Full Board's January 10, 2013, decision and remitted the matter to the Workers' Compensation Board (Board) for further proceedings not inconsistent with the court's decision.

At its meeting held on July 15, 2014, the Full Board adopted the Third Department's Memorandum and Order as the order of the Board and referred the matter to this Board Panel for further proceedings consistent with the Memorandum and Order of the Appellate Division.

ISSUES

The issue addressed by the Third Department is whether the claimant has maintained a sufficient attachment to the labor market subsequent to February 18, 2011.

FACTS

This case is established for a work-related injury to the claimant's back that occurred on April 18, 2010, while employed by Advance Auto Parts.

By decision filed on January 10, 2011, the WCLJ, among other findings, held the period of November 23, 2010, through January 5, 2011, in abeyance on the question of causally related reduced earnings.

In an RFA-1 (Claimant's Request for Further Action) filed on February 9, 2011, the claimant's attorney sought a hearing, stating that the claimant is not working and is not receiving benefits.

By a decision filed on April 25, 2011, the WCLJ, among other findings, continued the case for testimony of the claimant on the issue of whether his separation from employment was causally related to the established back injury.

The claimant testified at a hearing held on May 24, 2011, that he stopped working at Advance Auto Parts on August 28, 2010, due to severe back pain. When he returned to work on his next scheduled shift he was terminated with no explanation. He commenced employment with LKQ Broadway Used Auto Parts (LKQ) on November 23, 2010, but could not perform the required duties of this job due to his causally related back condition. He missed three to four weeks of time from work, and as a result, his employment with this employer was terminated on January 21, 2011. The claimant also testified that he applied for and is currently receiving unemployment benefits. He has registered with One Stop and has worked with several One Stop counselors. He has a five-pound lifting restriction with no bending, lifting or climbing ladders. Claimant testified that he applied for a security position at Securatist, but could not take the job because he does not presently have the required license. He applied at Verizon for a small counter job within his restrictions. He applied at Advance Auto Parts and is in the process of reapplying for a counter position with Auto Zone. He is putting together an application to American Best for a small counter position. He interviewed with Kohl's, but was told that he failed the written exam. He informs all prospective employers about his work restrictions. The claimant testified that he is still treating with Dr. Andrejuk, who has prescribed back injections, muscle relaxers, and pain relievers to no avail. He last saw Dr. Andrejuk on May 13, 2010, and is currently awaiting a follow up visit with him. He did not bring documentary evidence of his job search. When asked what documentation he had of his job search, claimant explained that he has "online files" as a majority of his applications were submitted on-line.

On cross-examination, the claimant testified he could not function at his job with Advance Auto because he could not adhere to his work restrictions. His job duties at LKQ did not require any lifting. He was treating with his doctors at the time he started his employment with LKQ. In the two months that he worked at LKQ, he was out of work for three-to-four weeks due to his causally related back condition. He would treat with his doctors during times he was out of work with LKQ. He has not worked since January 21, 2011. He registered at One Stop shortly after January 21, 2011. He has documentation at home regarding the individuals he has dealt with at One Stop. He was given a computer password by One Stop so that he could utilize their computer system. He returns to One Stop once a month to attend scheduled appointments. At those appointments, he provides a list of the places he has searched for work, but he did not have a copy of the list with him, but would provide it later. He could not recall the date that he interviewed with Securatist, or who he interviewed with at Securatist. He testified that he applied for a job with Verizon Wireless on-line about a week and a half earlier, but has not heard back from them. His application at Auto Zone is presently pending. He applied to Kohl's about three weeks ago. He applied to Big Lots on-line about four days ago. He obtained an application for employment as a counter person with American Best and is in the process of applying there. He could not recall all of the places that he applied to since he was let go from his employment with LKQ, but that he had testified regarding most of them. He was given a five-pound weight restriction by doctors at the Bone and Joint Center. He has not engaged in any re-training with VESID. He was making more at LKQ than he was previously with Advance Auto Parts.

In a decision filed May 28, 2011, the WCLJ directed the carrier to depose Dr. Andrejuk and submit the transcript of his testimony, referred the claimant to the Board's Vocational Rehabilitation Division and directed the claimant to produce copies of documentation of his job search within 20 days. The Board file contains no indication that the claimant timely complied with the direction that he submit documentation of his job search.

At a deposition held on June 20, 2011, Dr. Andrejuk, claimant's attending pain management physician, testified that he first treated claimant on February 18, 2011, for his work-related back injury. According to Dr. Andrejuk, claimant is markedly partially disabled due to his work-related back injury. The claimant is capable of working with restrictions on bending, twisting, climbing stairs or ladders, kneeling, no lifting over ten pounds, no sitting or standing for more than ten to fifteen minutes at a time, with pushing and pulling limited to ten to fifteen pounds. The doctor testified that his examinations of the claimant subsequent to February 18, 2011, do not show any significant changes and that the claimant is in need of further causally related medical treatment.

In an IME-4 (Practitioner's Report of Independent Medical Examination) dated and filed on December 2, 2010, the carrier's consulting occupational medicine physician, Dr. Belmonte, opined that that the claimant has no disability due to his April 18, 2010, back injury and requires no additional medical treatment. The testimony of Dr. Belmonte was waived by the claimant.

In a reserve decision filed on July 28, 2011, the WCLJ determined that the claimant's cessation of employment with LKQ was involuntary and that he has maintained a sufficient attachment to the labor market thereafter under the Board's holding in Matter of American Axle, 2010 NY Wrk Comp 80303659, based on his registration and participation with One Stop and his applications with multiple prospective employers. The WCLJ also concluded that the claimant has a marked partial disability due to his work-related back injury, cannot work without restrictions and needs further treatment due to his injury. The WCLJ made awards from February 18, 2011, to July 26, 2011, at the marked partial disability rate of $163.75 per week, and directed the carrier to continue payments at that rate.

By a memorandum of decision filed January 3, 2012, the Board Panel modified the WCLJ's July 28, 2011, reserve decision, concluding that the circumstances surrounding the cessation of the claimant's employment prior to February 18, 2011, are not dispositive on the issue of labor market attachment, as he is alleging re-attachment to the labor market subsequent to that date. The Board Panel rescinded awards subsequent to February 18, 2011, based upon the claimant's failure to produce evidence, as directed, of a sufficient attachment to the labor market.

By a memorandum of decision filed on January 10, 2013, the Full Board initially concluded that whether the claimant voluntarily or involuntarily ceased employment with LKQ is of no moment as he is only partially disabled and had a duty to seek work within his restrictions. The Full Board then concluded that the claimant failed to produce sufficient evidence of attachment to the labor market for the period in question, as he did not produce any documentary proof of a job search, or of his participation with One Stop, as required by Matter of American Axle.

By a Memorandum and Order decided and entered on July 3, 2014, the Appellate Division, Third Department, reversed and remitted the matter to the Board "for further proceedings not inconsistent with this Court's decision" (Matter of Winters v Advance Auto Parts, 2014 NY Slip Op 5005 [July 3, 2014]). The Third Department noted that the Board expressly found claimant's testimony that he was actively participating with One-Stop to be credible but, because claimant did not provide documentation of his participation, he failed to adequately demonstrate attachment to the labor market. The Third Department noted that the Board's reliance on Matter of American Axle is misplaced as it required documentary evidence only in connection with a claimant's independent job search, and that the Board therefore, improperly departed from its prior holding in Matter of Classic Bindery, 2011 NY Wrk Comp G0215031, which holds that a claimant's credible testimony regarding participation in a job-location service is sufficient to establish attachment to the labor market. The Third Department explained that the Full Board expressly found claimant's testimony on this issue of his participation with One Stop to be credible, and under the circumstances, the Board has not adequately explained its departure from its prior precedent.

LEGAL ANALYSIS

The Board Panel finds, after a review of the entire record, and consistent with the Memorandum and Order of the Appellate Division, Third Department decided and entered on July 3, 2014, that the claimant has maintained a sufficient attachment to the labor market subsequent to February 18, 2011, based on his credible testimony that he was registered, and fully participated, with One Stop. The claimant credibly testified that he registered with One Stop soon after sustaining his work-related injury, that he has worked with several One Stop counselors that have set up appointments for him to come in for counseling, that he uses a One Stop computer password to search for work on their database, that he returns to One Stop on a monthly basis to attend scheduled appointments and he searched for work based on leads provided to him by these counselors.

The Board however cautions that this finding is limited to the particular facts attendant to this case. The Third Department's holding that the claimant was attached to the labor market was premised on the Full Board's conclusion that the claimant's testimony concerning his participation with One Stop was credible. A claimant who fails to present documentary evidence of such participation may not always be as fortunate. In other words, a claimant who fails to make a demonstration via documentary evidence of his/her participation in a job service location and whose testimony is not as comprehensive and/or exhaustive as the claimant's herein, may be found to be incredible on the issue of active participation in a job-location service, and as a result, deemed not attached to the labor market.

CONCLUSION

ACCORDINGLY, the WCLJ reserve decision filed on July 28, 2011, is AFFIRMED. No further action is planned by the Board at this time.

All concur.