NY Court Disapproves of Board’s Retroactive Disqualification for Lack of Labor Market Attachment
Reversing a portion of a decision by the New York Workers’ Compensation Board, a state appellate court stressed that the appropriate date of a finding of no labor market attachment is not the date that the employer or carrier initially raises issue of labor market attachment, but rather the date that the evidence showing such a lack of attachment is actually submitted to the Board. Accordingly, where a claimant failed to offer evidence of labor market attachments at a July 2020 hearing, the Board appropriately found that claimant failed to show attachment to the labor market, but the Board erred when it retroactively disqualified claimant from benefits received prior to the hearing date at which evidence on the issue was heard.
Background
On June 20, 2018, claimant, a flight attendant for Delta Air Lines, sustained injuries when she made a sudden turn to respond to a coworker and bumped her head on a corner part of an overhead bin. She filed a claim for workers’ compensation benefits alleging various head and neurological-related injuries. The claim was accepted by the employer and its carrier, was later established for a work-related injury to the head, and claimant was awarded ongoing temporary total indemnity benefits.
May 2020 Hearing
In May 2020 hearing, the WCLJ found prima facie medical evidence for post-concussion syndrome with post-traumatic headaches and directed, among other things, claimant to produce prima facie evidence regarding the psychological portion of her claim. At that same hearing, the carrier raised the issue of claimant’s labor market attachment.
Following the deposition of claimant’s treating neurologist, to address causation, and a subsequent July 13, 2020 hearing at which claimant provided testimony regarding, among other things, her attachment to the labor market, the WCLJ found, in a July 2020 notice of decision, that claimant failed to demonstrate that her alleged post-concussion syndrome with associated headaches and anxiety was causally related and disallowed her request to amend the claim to include those alleged injuries. The WCLJ also found that claimant had voluntarily removed herself from the labor market subsequent to July 6, 2018, and, therefore, suffered no compensable lost time as of July 7, 2018. The Board affirmed, finding that the record evidence did not support a causal nexus between claimant’s proffered symptomology and her employment and that claimant provided incredible testimony concerning the circumstances surrounding her failure to return to work. Claimant appealed.
Appellate Court Decision
The appellate court noted that the Board was empowered to determine the factual issue of whether a causal relationship existed based upon the record, and its determination would not be disturbed when supported by substantial evidence. The court reviewed the testimony of claimant’s treating neurologist, who indicated that at an August 18, 2018 examination, he explained to claimant that she was “having symptoms consistent with a mild concussion” and that he “expected her to recover given the absence of any clear neurological deficits on the examination.” He also referred her to see a psychiatrist to help with her anxiety.
The treating neurologist further opined that the advanced imaging results from an October 2018 MRI were “essentially normal,” that claimant’s reported symptoms had no physiological or neurological explanations and that there were no objective findings to support the existence of post-traumatic headaches. The doctor acknowledged that claimant subjectively experienced her reported symptoms but found that they were “coming from an emotional source rather than a physical one” and that he did not “have much else to add for her in the way of treatment.” The doctor further opined that he never took claimant out of work and that, at the time of his August 2018 examination, claimant was able to work subject to certain light-duty restrictions with permitted breaks as needed for headaches. Based on the foregoing, the appellate court said substantial evidence in the record supported the Board’s decision to disallow claimant’s request to amend her claim to include psychological disability.
Attachment to Labor Market
Turning to the Board’s finding that claimant voluntarily removed herself from the labor market on or about July 6, 2018, while she was receiving temporary indemnity benefits, the court noted that claimant had provided no proof that she was attached to the labor market on or after July 6, 2018. Accordingly, substantial evidence supported the Board’s finding that claimant voluntarily removed herself from the labor market.
Board Nevertheless Erred in Setting Date for Abandonment of Labor Market
The appellate court agreed, however, with claimant’s contention that the Board erred in finding that she failed to demonstrate labor market attachment subsequent to July 6, 2018. Citing Matter of Bruno v World Trade Ctr. Volunteer Fund, 184 AD3d 929, 931, 124 N.Y.S.3d 745 (2020), the court held that the appropriate date of a finding of no labor market attachment was not the date the issue was raised, but rather the date that evidence showing a lack of labor market attachment was submitted. Here, the carrier raised the issue of labor market attachment at the May 2020 hearing, and claimant provided testimony on that issue at the July 13, 2020 hearing. Accordingly, the applicable date for the Board’s finding of no labor market attachment was July 13, 2020. The Board erred, therefore, in rescinding claimant’s indemnity benefits covering the period July 7, 2018 through July 12, 2020. The court reversed that part of the Board’s decision and remitted the case for further proceedings not inconsistent with the Court’s decision.