| Matter of Mills v J.C. Penney |
| 2009 NY Slip Op 00604 [59 AD3d 755] |
| February 5, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Donna Mills, Appellant, v J.C.Penney et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Ryan, Roach & Ryan, Kingston (Sean Denvir of counsel), for J.C. Penney and another,respondents.
Malone Jr., J. Appeal from a decision of the Workers' Compensation Board, filed September6, 2007, which ruled that claimant voluntarily withdrew from the labor market and denied herclaim for further workers' compensation benefits.
In October 1993, claimant injured her back while at work and filed a claim for workers'compensation benefits. Following a hearing before a Workers' Compensation Law Judge(hereinafter WCLJ), accident, notice and causal relationship were established with respect to thisinjury and claimant was awarded benefits through March 31, 1997. The WCLJ later determinedin 2000 that claimant suffered a permanent partial disability as a result of this injury and benefitsfor the period after March 31, 1997 were held in abeyance. In 2006, claimant filed a request forfurther action seeking ongoing benefits based upon the 2000 permanent partial disabilityclassification. As a result, the case was restored to the trial calendar and further evidence wastaken. Thereafter, the WCLJ issued a reserved decision denying claimant's request for furtherbenefits. The Workers' Compensation Board affirmed the WCLJ's decision, finding that claimantwas not entitled to further lost wages because she failed to demonstrate an attachment to the[*2]labor market. Claimant appeals.
Initially, "[w]here a claimant has a permanent partial disability but there has been no findingof involuntary 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 James Sq. NursingHome, 34 AD3d 1033, 1034 [2006]; see Matter of Stevenson v Sunoco Flexible Packaging, 43 AD3d1260, 1261 [2007]). Notably, " '[w]hether a claimant has voluntarily withdrawn from thelabor market is a factual issue for the Board to resolve and, if supported by substantial evidencein the record, the Board's resolution of that issue will not be disturbed' " (Matter of Disarno v Mattel/Fisher PriceInc., 25 AD3d 969, 970 [2006], quoting Matter of Beehm v EducationalOpportunity Ctr., County of Rensselaer, 272 AD2d 808, 808 [2000]). In this regard, we notethat the Board is vested with broad authority to decide factual issues based upon the credibilityof witnesses and to draw reasonable inferences therefrom (see Matter of Korczyk v City ofAlbany, 264 AD2d 908, 909 [1999]; see also Matter of Hare v Champion Intl., 50 AD3d 1254, 1255[2008], lv dismissed 11 NY3d 863 [2008]; Matter of Laing v Maryhaven Ctr. of Hope, 39 AD3d 1125, 1126[2007], lv denied 9 NY3d 805 [2007]).
In the case at hand, claimant did not present a compelling case establishing her attachment tothe labor market. Although she stated that she has applied for numerous jobs over the course ofthe past 10 years, she was evasive with respect to the specific positions that she was offered.Notably, she identified only one actual offer, but stated that it required her to stand for longperiods of time, which was not within her medical limitations. In addition, while claimantmaintained that her medical condition continued to deteriorate, her treating physician opined thatclaimant was embellishing her symptoms. Furthermore, claimant testified that she has undergoneextensive schooling since her injury, obtaining a number of degrees and enrolling in internshipsrequiring her to put in 800 hours of practical work. Curiously, however, she has been unable tosecure a suitable offer of employment despite such extensive training. Under the circumstancespresented, the Board was entitled to discredit claimant's testimony and conclude that she did notdemonstrate an attachment to the labor market. Accordingly, we find no basis to disturb itsdecision denying her further benefits. Claimant's remaining contentions have not been preservedfor our review.
Cardona, P.J., Mercure, Lahtinen and Stein, JJ., concur. Ordered that the decision isaffirmed, without costs.