Declan Gourley speaking at Image from November 2, 2018 webinar on Virtual Hearings in New York

LOIS Attorneys Prevail on Appeal Regarding Meaningful Job Search

Partner Declan Gourley recently won an appeal that defines what a good faith effort and a “meaningful work search” is for a highly-qualified claimant. By winning this appeal, all money benefits were terminated! This decision illustrates the value of a carefully-prepared cross examination when challenging the validity of a work search conducted by the claimant.

Relevant Facts

The claimant, a registered nurse, sustained a work-related injury while lifting an oxygen tank on November 5, 2012. An IME was conducted by Dr. Pagano, who opined that the claimant had reached MMI and had no more than a mild disability. Dr. Pagano found that the claimant could return to work with a 50-pound lifting restriction. The carrier raised the issue of labor market attachment and directed the claimant to produce evidence of her search for work. At the next hearing, the WCLJ directed the carrier to suspend payments because the claimant did not attend a hearing held and failed to produce the directed work search evidence.

The claimant testified that she had an associate’s degree in Nursing, and that since graduating high school, she had only worked as a nurse or a phlebotomist with no supervisory experience. Her job duties as a nurse included taking blood pressure, admitting patients, giving respiratory treatment, drawing blood, working an IV, and performing EKG testing. At the time of the hearing, the claimant resided in Florida but had active licenses as a registered nurse in both New York and Florida. The claimant began her search for employment on December 2, 2017 and submitted her most recent evidence for March 9, 2018. The claimant enrolled in a part-time nursing program to obtain her bachelor’s degree in nursing, and registered with Suncoast Career Center in Florida, which she visited once a week to use the center’s computer to look for jobs online. The claimant testified that she applied for part-time jobs because her restrictions included no lifting or reaching, and she stated that the IME doctor advised that she should only work part time. The claimant further testified that she was unable to return to her position as a nurse due to her restrictions, and that she had relocated to Florida in 2016 because her husband got a job there.

The WCLJ found that the claimant did not make a good faith effort in seeking employment within her medical restrictions, so she was not attached to the labor market. The WCLJ found that the claimant had no causally related wage loss based on her concession that she moved to Florida due to her husband’s employment. Claimant filed an application for administrative review, arguing that the claimant’s job search was performed in good faith based on the evidence submitted to the Board file, and that the record supported a 70% LWEC. The carrier filed a rebuttal requesting that the WCLJ’s decision be affirmed, arguing that the claimant’s efforts were not made in good faith because the claimant was looking for part-time work, but no doctor had placed restrictions on the number of hours the claimant was capable of working. The carrier also contended that the WCLJ properly found no causally related wage loss based on the claimant’s medical impairment, vocational skills, and functional abilities.

The issue presented for Mandatory Full Board Review was whether the claimant had demonstrated an attachment to the labor market. The Board Panel majority affirmed the finding of no labor market attachment but found that the claimant had a 25% LWEC. The claimant filed an application for Mandatory Full Board Review arguing that the Board Panel erred in finding that the claimant is not attached to the labor market. The carrier filed a rebuttal arguing that the findings of the Board Panel majority should be affirmed.

The Decision on Appeal.

A claimant with a temporary partial disability must look for work within the limits of their partial disability or otherwise demonstrate a sufficient attachment to the labor market (Matter of Robert D. Anderson Co Inc., 2012 NY Wrk Comp G0016823). 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 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).

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 (id.). If an applicant is using websites to search for work and has been provided with a confirmation e-mail or reference number, that information should be provided to the Board as evidence of the job search. “If such documentation is not available, the claimant must, at a minimum, document the date he or she made the online application, the position applied for, and the name of the site they used” (Suffolk County Health Services, 2016 NY Wrk Comp G0713095).

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.) If the claimant’s work search has been unsuccessful, the Board must also consider whether the claimant has demonstrated a nexus between his disability and his inability to find work (Matter of Pontillo v Consolidated Edison of N.Y., Inc., 156 AD3d 1064 [2017]).
Here, the claimant submitted insufficient evidence of a good faith search for employment within her restrictions. While the claimant’s C-258.1 forms showed that she applied to various positions, the claimant conceded in her testimony that these positions were all part time. The claimant’s testimony further demonstrated that she was unaware of her actual restrictions. The claimant testified that Dr. Pagano advised that she could only work part-time positions that involved no lifting or reaching; however, Dr. Pagano’s IME report made no mention of such restrictions and only opined that the claimant was capable of returning to work with a 50-pound lifting restriction. Thus, the claimant voluntarily restricted her job search to part-time jobs. The evidence also suggested that the claimant was visiting the career center on a consistent basis; however, there was no evidence that the claimant was engaged in any of the organization’s vocational programs other than simply registering and utilizing the center’s computers to apply for jobs. Finally, claimant’s enrollment in part-time classes was insufficient to satisfy the requirements of American Axle.

The Full Board found the preponderance of the evidence in the record supported the finding that the claimant failed to demonstrate that she was attached to the labor market and was not eligible for continuing benefits. The WCLJ decision was modified to find that the claimant was classified with a permanent partial disability with a 25% LWEC in the same employment or otherwise. The claimant was entitled to wage loss benefits not to exceed 250 weeks. However, the claimant was not currently entitled to wage loss benefits based on a finding of a lack of attachment to the labor market.

Key Takeaways for Winning on Attachment Defense

Here are the key takeaways from the Board’s decision in In Re Good Samaritan.

1. Confirm that the claimant is looking for work within the restrictions of their disability

  • Confirm the claimant is aware of the restrictions set by their doctors when looking for work: full-time/part-time, weight restrictions, standing/sitting restrictions, etc.

2. Use cross-examination to question the claimant about the requirements of the jobs they applied for.

  • Can they physical do the jobs they are applying for?
  • Are there other jobs they could be applying for?

3. Confirm on cross-examination all the skills the claimant had for working previously and all activities the claimant is still capable of doing: language writing/listening/talking skills, clerical skills, etc.

  • Confirm that the claimant provides proper documentation of the jobs they apply for: who they talked to, dates of communication, resumes sent, etc.
  • Confirm that the claimant is fully utilizing career centers and not just simply applying for jobs on computers
  • Ask about seminars/training programs that they have attended to better themselves in preparation.

Defending Employers in New York, New Jersey, and Longshore.