| Matter of VanWinkle v Harden Furniture |
| 2009 NY Slip Op 04796 [63 AD3d 1360] |
| June 11, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Melissa VanWinkle, Respondent, vHarden Furniture, Appellant. Workers' Compensation Board,Respondent. |
—[*1] Meggesto, Crossett & Valerino, Syracuse (William W. Crossett IV of counsel), for MelissaVanWinkle, respondent. Andrew M. Cuomo, Attorney General, New York City (Iris Steel of counsel), for Workers'Compensation Board, respondent.
Cardona, P.J. Appeals from a decision and an amended decision of the Workers'Compensation Board, filed May 4, 2007 and April 18, 2008, which ruled that claimant did notvoluntarily withdraw from the labor market.
Claimant, a woodworker, sustained a work-related injury to her back in October 2004. Shereturned to work in January 2005 with the restriction that she not lift anything over 10 pounds.Claimant continued her employment under that restriction until the summer of 2005 when sherequested a transfer to a less physically demanding office position. In August 2005, after beinginformed that such positions were not available, claimant resigned. Thereafter, she obtainedemployment with lower pay but less strenuous physical requirements.[*2]
Subsequently, the employer challenged the temporaryaward of reduced earnings, raising the issue of whether claimant voluntarily withdrew from thelabor market as a result of her resignation to pursue other employment. Following a hearing, aWorkers' Compensation Law Judge determined, among other things, that claimant did notvoluntarily remove herself from the labor market. Upon review, the Workers' CompensationBoard affirmed that determination, first on May 4, 2007 and again in an amended decision onApril 18, 2008. The employer appeals both decisions.
"Whether a claimant has voluntarily withdrawn from the labor market is a factual issue forthe Board to resolve and, if supported by substantial evidence in the record, the Board'sresolution of that issue will not be disturbed" (Matter of Beehm v Educational OpportunityCtr., County of Rensselaer, 272 AD2d 808, 808 [2000] [citation omitted]; accord Matter of Grant v Niagara MohawkPower Co., 53 AD3d 972, 973 [2008]). Here, the record contains substantial evidence insupport of the Board's determination. Claimant testified that her decision to resign was promptedby the injury to her back and her continuing pain while performing her assigned duties.Moreover, prior to initially requesting a transfer to an office position and eventually resigning,claimant's treating chiropractor indicated to her that the physical requirements of heremployment as a woodworker would prevent her from fully recovering from her injury andsuggested a change in employment to a less strenuous position. Inasmuch as the record supportsa finding that claimant's back injury motivated her to resign and seek new employment, wedecline to disturb the Board's decision (see Matter of Disarno v Mattel/Fisher Price Inc., 25 AD3d 969,970 [2006]; Matter of Elwood v K-Mart Corp., 289 AD2d 794, 795 [2001]; Matter ofBeehm v Educational Opportunity Ctr., County of Rensselaer, 272 AD2d at 808).
Mercure, Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the decision andamended decision are affirmed, with costs to claimant.