| Matter of O'Rourke v Consolidated Edison Co. of N.Y. |
| 2010 NY Slip Op 07286 [77 AD3d 1031] |
| October 14, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Thomas O'Rourke, Appellant, vConsolidated Edison Company of New York et al., Respondents. |
—[*1] Vecchione, Vecchione & Connors, Garden City Park (Sean J. McKinley of counsel), forConsolidated Edison Company of New York and another, respondents.
Spain, J.P. Appeal from a decision of the Workers' Compensation Board, filed February 9,2009, which ruled that claimant voluntarily removed himself from the labor market.
Claimant, a mechanic, sustained a work-related injury to his right knee in January 2006 andwas awarded workers' compensation benefits. Although claimant returned to work two days later,he had total right knee replacement surgery in May 2006 and returned to light duty work in July2006. In September 2006, claimant was placed on permanent restriction from his position as amechanic and the employer started him on a job training program to learn computer skills.Claimant failed the job training program and, on March 12, 2007, he was informed that there wasno longer a budgeted position available for him. Claimant subsequently took regular retirementwith over 35 years of service. After claimant raised the issue of consequential injuries to his other(left) knee and back, the employer raised the issue of voluntary removal from the labor market. Aworkers' compensation law judge ultimately found a consequential injury to the left knee andback and that claimant had involuntarily withdrawn from the labor market, and awarded claimantbenefits from March 12, 2007 to July 31, 2008. On review, the Workers' Compensation [*2]Board reversed the finding of an involuntary withdrawal from thelabor market and rescinded claimant's postretirement compensation benefits. Claimant nowappeals.
We affirm. "Whether a claimant has voluntarily withdrawn from the labor market is a factualissue for the Board to resolve and, if supported by substantial evidence in the record, the Board'sresolution of that issue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 VanWinkle v HardenFurniture, 63 AD3d 1360, 1361 [2009]). Here, an orthopedic surgeon who examinedclaimant on behalf of the employer testified that, although claimant was disabled from workingas a mechanic, he was able to perform light duty work. Claimant's treating physician alsotestified that claimant was disabled from his position as a mechanic but was able to performsedentary work. Claimant also presented the reports of another orthopedic surgeon who assessedclaimant as being totally permanently disabled.
Claimant testified, however, that he had performed light duty work for the employer for 40hours per week without a problem for eight months prior to his retirement and that he could haveremained working in that capacity had the employer continued the position. Claimant alsotestified that he was able to exercise regularly, do some household chores and drive a car. In lightof claimant's admitted physical abilities, and the expert opinions concerning claimant's ability todo sedentary work, the Board acted within its discretion in rejecting a finding of total permanentdisability (see Matter of Johnson vCounty of Clinton, 46 AD3d 1175, 1176 [2007]). Further, based upon claimant'sadmission to not seeking employment after his retirement and the lack of evidence that claimant'sfailure to find employment was based on his disability, we find that the Board's determinationthat claimant voluntarily removed himself from the labor market by not seeking work within hismedical limitations is supported by substantial evidence (see Matter of Stevenson v Sunoco Flexible Packaging, 43 AD3d1260, 1260 [2007]; Matter ofSanchez v Consolidated Edison Co. of N.Y., Inc., 40 AD3d 1153, 1154 [2007]; Matter of Laing v Maryhaven Ctr. ofHope, 39 AD3d 1125, 1126 [2007], lv denied 9 NY3d 805 [2007]). Finally,claimant's voluntary removal from the labor market and admitted failure to seek furtheremployment renders the record devoid of proof of a causally related loss of earnings (see Matter of Ilovar v ConsolidatedEdison, 28 AD3d 1026, 1027 [2006]).
Lahtinen, Kavanagh, Stein and Garry, JJ., concur. Ordered that the decision is affirmed,without costs.