| Matter of Hester v Homemakers Upstate Group |
| 2011 NY Slip Op 02091 [82 AD3d 1461] |
| March 24, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Barbara Hester, Appellant, vHomemakers Upstate Group et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Hamberger & Weiss, Buffalo (Susan R. Duffy of counsel), for Homemakers Upstate Group,respondent.
Spain, J.P. Appeal from a decision of the Workers' Compensation Board, filed August 26,2009, which ruled that claimant voluntarily withdrew from the labor market.
In 2006, claimant sustained compensable injuries to her right hip and back in the course ofher work as a home health aide, and those injuries were eventually found to constitute apermanent partial disability. Thereafter, a Workers' Compensation Law Judge conducted ahearing on the issue of whether claimant remained attached to the labor market and determinedthat she was. The Workers' Compensation Board reversed, finding that claimant had voluntarilywithdrawn from the labor market, and she now appeals.
We affirm. In determining that claimant had sustained a permanent partial disability, theWorkers' Compensation Law Judge credited the opinion of a physician who examined claimant,reviewed her medical records and found that she could return to work with restrictions. Claimantdid not appeal to the Board from that determination, and the Board had not previouslydetermined that she had withdrawn from the labor market; accordingly, she was obliged "to [*2]demonstrate attachment to the labor market with evidence of asearch for employment within medical restrictions" in order to receive continuing workers'compensation benefits (Matter of Peck vJames Sq. Nursing Home, 34 AD3d 1033, 1034 [2006]; see Matter of O'Rourke v ConsolidatedEdison Co. of N.Y., 77 AD3d 1031, 1032 [2010]; Matter of Sanchez v Consolidated Edison Co. of N.Y., Inc., 40 AD3d1153, 1154 [2007]). In that regard, claimant admitted that she had not looked for work sinceher injury and did not plan on doing so in the future. Substantial evidence thus supports theBoard's determination that she had voluntarily withdrawn from the labor market (see Matter of German v Target Corp.,77 AD3d 1126, 1126-1127 [2010]; Matter of O'Rourke v Consolidated Edison Co. ofN.Y., 77 AD3d at 1032).
Claimant's remaining contentions, to the extent they are properly before us, have beenexamined and found to be without merit.
Stein, McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the decision is affirmed,without costs.