| Matter of Bentvena v City & Suburban |
| 2008 NY Slip Op 09500 [57 AD3d 1028] |
| December 4, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of William Bentvena, Respondent, v City &Suburban et al., Appellants. Workers' Compensation Board, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Iris Steel of counsel), for Workers'Compensation Board, respondent.
Malone Jr., J. Appeal from a decision of the Workers' Compensation Board, filed August 10,2006, which ruled that claimant did not voluntarily withdraw from the labor market.
Claimant sustained a work-related injury in July 2003. Thereafter, the employer and its workers'compensation carrier raised an issue as to whether claimant voluntarily withdrew from the labor marketby refusing the offer of a light-duty work assignment. Following several hearings and the depositiontestimony of five doctors, a Workers' Compensation Law Judge determined that claimant voluntarilywithdrew from the labor market. Upon review, the Workers' Compensation Board reversed,prompting this appeal by the employer and the carrier.
"[W]hether a claimant's failure to accept a light-duty assignment constitutes a voluntary withdrawalfrom the labor market is a factual issue for the Board to resolve and, if supported by substantialevidence, its decision in this regard will not be disturbed" (Matter of Hatter v New VentureGear, 305 AD2d 757, 758 [2003]; seeMatter of Bacci v Staten Is. Univ. Hosp., 32 AD3d 582, 583 [2006]). Likewise, it is withinthe Board's discretion to determine witness [*2]credibility and resolveconflicting medical opinions (see Matter ofDimitriadis v One Source, 53 AD3d 704, 705 [2008]; Matter of Guifarro v Zalman, Reiss & Assoc., 52 AD3d 1126,1127-1128 [2008]; Matter of Bacci v Staten Is. Univ. Hosp., 32 AD3d at 583). Here,claimant's treating chiropractor wrote a letter in March 2004 indicating that claimant could return towork part time with certain restrictions, including no standing for more than five hours and no sitting formore than five hours, not to exceed 25 hours per week. Claimant testified that he informed theemployer that the intent of the letter was to limit him to working five hours per day, and claimant'schiropractor confirmed this interpretation in his deposition testimony. Therefore, we find that theemployer's insistence that claimant work three eight-hour days was not consistent with claimant'smedical limitations and, therefore, the Board's determination that claimant's refusal of the light-dutyassignment did not constitute voluntary withdrawal from the labor market was supported by substantialevidence (see Matter of Hatter v New Venture Gear, 305 AD2d at 758-759).
Cardona, P.J., Carpinello, Lahtinen and Kane, JJ., concur. Ordered that the decision is affirmed,without costs.