| Matter of Stevenson v Sunoco Flexible Packaging |
| 2007 NY Slip Op 07046 [43 AD3d 1260] |
| September 27, 2007 |
| Appellate Division, Third Department |
| In the Matter of the Claim of David Stevenson, Appellant, v SunocoFlexible Packaging et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Wolff, Goodrich & Goldman, L.L.P., Syracuse (Robert E. Geyer Jr. of counsel), for SunocoFlexible Packaging and another, respondents.
Mercure, J. Appeal from a decision of the Workers' Compensation Board, filed May 22,2006, which ruled, among other things, that claimant voluntarily withdrew from the labor marketand denied his claim for workers' compensation benefits.
Claimant worked as an assistant supervisor and press leader for the employer forapproximately 30 years. In 2002, claimant sought treatment for a respiratory injury that wasultimately determined to be a causally-related permanent partial disability. After the employerclosed the plant at which he worked, claimant applied for but was denied workers' compensationbenefits on the ground that he voluntarily withdrew from the labor market by failing to seek workafter the plant closed. Claimant appeals and we affirm.
"Where a claimant has a permanent partial disability but there has been no finding ofinvoluntary retirement, the claimant has an obligation to demonstrate attachment to the labormarket with evidence of a search for employment within medical restrictions" (Matter of Peck v [*2]James Sq. Nursing Home, 34 AD3d 1033, 1034 [2006][citations omitted]; see Matter of Grossv BJ's Wholesale Club, 29 AD3d 1051, 1052 [2006]; Matter of Walby v Volt Info.Science, 292 AD2d 740, 740 [2002]; Matter of Ennist v Texaco, Inc., 280 AD2d773, 773 [2001]). Here, claimant lost his employment due to the plant closing, a cause unrelatedto his disability, and the Workers' Compensation Board made no finding of involuntaryretirement, thus obligating claimant to seek subsequent employment (see Matter of Laing v Maryhaven Ctr. ofHope, 39 AD3d 1125, 1126 [2007], lv denied 9 NY3d 805 [2007]; cf. Matter of Pepe v City & Suburban,29 AD3d 1184, 1185-1186 [2006]; Matter of Tipping v National Surface Cleaning Mgt., Inc., 29 AD3d1200, 1200-1201 [2006]). Inasmuch as claimant made no effort to seek employment withinhis physical limitations, substantial evidence supports the Board's determination that claimantvoluntarily withdrew from the labor market (see Matter of Sanchez v Consolidated Edison Co. of N.Y., Inc., 40AD3d 1153, 1154 [2007]; Matter of Laing v Maryhaven Ctr. of Hope, 39 AD3d at1126). Finally, we note that because claimant's withdrawal from the labor market was found to bevoluntary in the first instance, our cases on the issue of whether a failure to look for workconstitutes a detachment from the labor market subsequent to an involuntary retirementare inapplicable (see Matter of Sanchez v Consolidated Edison Co. of N.Y., Inc., 40AD3d at 1154).
Cardona, P.J., Peters, Spain and Carpinello, JJ., concur. Ordered that the decision isaffirmed, without costs.