Michelle Howard v. Avalanche Strategies, LLC, (IAB Hearing No. 1497645- Decided May 6, 2021)

Board grants employer’s termination petition, finding that employer offered claimant a modified-duty job within her restrictions which claimant rejected since she had moved out of state for personal reasons.

The claimant suffered a compensable work injury on March 30, 2020, when she was lifting boxes and felt left shoulder pain. On August 3, 2020, she underwent left rotator cuff surgery with Dr. Pillai. Ten days later, she was released by the treating physician to work with no use of the left arm. The employer offered the claimant a modified-duty job that required use of the right arm only. The claimant, at that point, had moved for personal reasons to Pennsylvania and was living three hours away. She declined the job offer.

The employer filed a termination petition, alleging the claimant was capable of working with restrictions at no loss of wages. Dr. Schwartz testified, as the employer’s medical witness, that he had examined the claimant on March 11, 2021, and believed she was physically capable of working full time in a one-handed duty capacity consistent with the restrictions from Dr. Pillai. In addition to evidence of the bona fide job offer, the employer also presented testimony from a vocational consultant regarding a Labor Market Survey, which showed that 10 jobs—mostly cashier positions—were available to the claimant in the area where she now lived in Pennsylvania. This evidence showed that the prospective employers would accept an application from someone with the claimant’s background, medical capabilities, and restrictions and that the jobs would allow for lifting with one hand only or did not require any lifting at all.

Claimant’s counsel did not present any medical evidence but had the claimant testify on her own behalf. Her testimony revealed that she currently had neck pain and tingling and numbness in her right hand while doing physical therapy. The claimant did concede that in the work injury she had injured her left upper extremity, but was now having problems involving her neck and right arm. She testified that she was looking for work where she now lived, but had not yet found a job. The claimant only started looking for work in January 2021, when her attorney sent her the Labor Market Survey documents, and did concede that she had been released to restricted work by Dr. Pillai back on August 13, 2020.

The Board found that the claimant was no longer totally disabled based on its acceptance of Dr. Schwartz’s opinion that the claimant was physically capable of working in a one-handed duty capacity. The claimant did not contend that she was a displaced worker but, rather, argued that she should receive ongoing total disability benefits. The Board did not agree. The Board concluded that since the employer had offered the claimant a job within her restrictions at no wage loss, which she declined for personal reasons, she had no entitlement to partial disability benefits. The Board also addressed the vocational evidence and found that the Labor Market Survey showed jobs for which the claimant was physically and vocationally suited that were available in the open labor market. Those jobs had a low average weekly wage but in excess of the pre-injury average weekly wage; therefore, the claimant was not entitled to any partial disability benefits. Finally, the Board found that the claimant had not conducted a reasonable job search since she did not do so until her attorney sent her the Labor Market Survey documents. The Board characterized claimant’s actions as being a reactionary job search, as it was done only in anticipation of and in preparation for litigation rather than to actually find a job.


What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.