| Matter of Magerko v Edwin B. Stimpson Co., Inc. |
| 2009 NY Slip Op 08720 [67 AD3d 1267] |
| November 25, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Thomas A. Magerko, Appellant, vEdwin B. Stimpson Company, Inc., et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Cherry, Edson & Kelly, LLP, Carle Place (David W. Faber of counsel), for Edwin B.Stimpson Company, Inc. and another, respondents.
Mercure, J.P. Appeal from a decision of the Workers' Compensation Board, filed July 29,2008, which, among other things, ruled that claimant voluntarily withdrew from the labormarket.
Claimant has an established permanent partial disability due to a variety of ailments relatedto a 1990 work-related injury. In June 2003, claimant was laid off when his employer moved partof its operations out of state. Following hearings, a Workers' Compensation Law Judge foundthat, among other things, claimant had not voluntarily withdrawn from the labor marketfollowing his layoff. Upon review, the Workers' Compensation Board disagreed and rescindedall awards from June 2003 onward. Claimant now appeals and we affirm.
Whether a claimant has voluntarily withdrawn from the labor market is an issue of fact forthe Board to resolve, and its resolution of that issue will not be disturbed if supported bysubstantial evidence in the record (see Matter of VanWinkle v Harden Furniture, 63AD3d 1360, 1361 [2009]; Matter of Donovan v BOCES Rockland County, 63 AD3d1310, 1312-1313 [2009]). Inasmuch as claimant's loss of employment was due to a layoffunrelated to his [*2]disability and the Board made no finding ofinvoluntary retirement, the burden rests on claimant to demonstrate "by substantial evidence thathis disability contributed to his continued unemployment" (Matter of Gross v BJ's WholesaleClub, 29 AD3d 1051, 1052 [2006]; see Matter of Stevenson v Sunoco FlexiblePackaging, 43 AD3d 1260, 1261 [2007]).
The testimony in this case reveals that claimant collected unemployment insurance benefitsand made some effort to locate work soon after he was laid off. That job search, however,amounted to preparing a resume, submitting it to an unspecified number of potential employersat job fairs and attending one interview. Although claimant stated that his physical constraintsprevented him from doing the job for which he interviewed, there is no indication that he askedthat potential employer to accommodate his disability. Thereafter, claimant began receivingSocial Security disability benefits and moved to Florida in 2004, and he has made no subsequenteffort to find a job. Claimant alleges that this failure to seek employment is due to hiswork-related disability, but the physicians who have examined claimant agree that he is capableof working within certain limitations. In our view, the foregoing constitutes substantial evidenceto support the Board's determination that claimant voluntarily withdrew from the labor marketafter he was laid off (see Matter of Laing v Maryhaven Ctr. of Hope, 39 AD3d 1125,1126 [2007], lv denied 9 NY3d 805 [2007]; Matter of Walby v Volt Info.Science, 292 AD2d 740, 740-741 [2002]; Matter of Benesch v Utilities Mut. Ins.Co., 263 AD2d 585, 585 [1999]).
Kavanagh, Stein, McCarthy and Garry, JJ., concur. Ordered that the decision is affirmed,without costs.