| Matter of German v Target Corp. |
| 2010 NY Slip Op 07451 [77 AD3d 1126] |
| October 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Altagracia German, Appellant, vTarget Corporation et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Stewart, Greenblatt, Manning & Baez, Syosset (Patrick M. Conroy of counsel), for TargetCorporation and another, respondents.
Spain, J.P. Appeal from a decision of the Workers' Compensation Board, filed April 13,2009, which, among other things, ruled that claimant voluntarily withdrew from the labor market.
In March 2006, claimant sustained a work-related injury to her head, neck and back whileworking as a cleaner in one of the employer's stores when, as she stood up after bending over topick trash off the floor, she banged her head on a sprinkler valve. Claimant sustained furtherinjury to her lower back while getting on an examination table for an independent medicalexamination evaluation. Following a hearing, a workers' compensation law judge determined thatclaimant was permanently partially markedly disabled and awarded workers' compensationbenefits. Upon review, the Workers' Compensation Board agreed that claimant suffered apermanent partial disability, but found that claimant voluntarily withdrew from the labor marketand, accordingly, that she is not entitled to receive benefits past the date of her November 2008hearing. On claimant's appeal, we now 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"Whether a claimant has voluntarily withdrawn from the labor market is an issue of fact forthe Board to resolve, and its resolution of that issue will not be disturbed if supported by [*2]substantial evidence in the record" (Matter of Magerko v Edwin B. StimpsonCo., Inc., 67 AD3d 1267, 1268 [2009] [citation omitted]; see Matter of VanWinkle v HardenFurniture, 63 AD3d 1360, 1361 [2009]). In situations such as this, where the claimanthas a permanent partial disability, the Board may consider whether the claimant has"demonstrate[d] attachment to the labor market with evidence of a search for employment withinmedical restrictions" when determining whether the claimant's separation from the labor marketwas voluntary (Matter of Peck v JamesSq. Nursing Home, 34 AD3d 1033, 1034 [2006]; see Burns v Varriale, 9 NY3d 207, 216 [2007]; Matter of Rothe v United Med. Assoc.,18 AD3d 1093, 1094 [2005]; Matter of Capezzuti v Glens Falls Hosp., 282 AD2d808, 809-810 [2001]). Here, claimant testified that she had not worked since the day of heraccident and admitted that she had made no attempt to look for work. Under these circumstances,we have no basis to disturb the Board's factual finding that claimant's withdrawal from theworkforce was voluntary (see 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]).
Claimant's contention that she was entitled to a presumption that her earning capacity wasreduced by her disability is misplaced as the cases upon which she relies involve situations wherethe threshold finding of involuntary separation had already been made (see Matter of Laing vMaryhaven Ctr. of Hope, 39 AD3d at 1126; cf. Matter of Leeber v LILCO, 29 AD3d 1198, 1199 [2006]; Matter of Pittman v ABM Indus., Inc.,24 AD3d 1056, 1057 [2005]; Matter of Jiminez v Waldbaums, 9 AD3d 99, 100-101 [2004]).
Lahtinen, Kavanagh, Stein and Garry, JJ., concur. Ordered that the decision is affirmed,without costs.