| Matter of Bobbitt v Peter Charbonneau Constr. |
| 2011 NY Slip Op 04790 [85 AD3d 1351] |
| June 9, 2011 |
| Appellate Division, Third Department |
| In the Matter of Thomas Bobbitt, Appellant, v Peter CharbonneauConstruction et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Stockton, Barker & Mead, Albany (Leith Carole Ramsey of counsel), for Peter CharbonneauConstruction and another, respondents.
Kavanagh, J. Appeal from a decision of the Workers' Compensation Board, filed November6, 2009, which ruled that claimant voluntarily withdrew from the labor market.
In 1998, claimant sustained injuries to his neck, shoulder and back in the course of hisemployment as a construction worker and was thereafter awarded workers' compensationbenefits. The parties agreed via stipulation that claimant was permanently partially disabled, butthe employer's workers' compensation carrier later contended that claimant had voluntarilyremoved himself from the labor market and, as a result, his benefits should be discontinued.Following a hearing, the Workers' Compensation Law Judge found that because claimant hadunrelated health problems that rendered him unable to work, he had not voluntarily separatedfrom the labor market. Upon review, the Workers' Compensation Board disagreed anddiscontinued claimant's benefits. Claimant now appeals.
"Where a claimant has a permanent partial disability but there has been no finding of [*2]involuntary retirement, the claimant has an obligation todemonstrate attachment to the labor market with evidence of a search for employment withinmedical restrictions" (Matter of Peck vJames Sq. Nursing Home, 34 AD3d 1033, 1034 [2006] [citations omitted]; see Matter of Hester v HomemakersUpstate Group, 82 AD3d 1461 [2011]; Matter of Hare v Champion Intl., 50 AD3d 1254, 1255 [2008],appeal dismissed 11 NY3d 863 [2008]; Matter of Laing v Maryhaven Ctr. of Hope, 39 AD3d 1125, 1126[2007], lv denied 9 NY3d 805 [2007]). "Whether a claimant has voluntarily withdrawnfrom the labor market is an issue of fact for the Board to resolve, and its resolution of that issuewill not be disturbed if supported by substantial evidence" (Matter of German v Target Corp., 77 AD3d 1126, 1126 [2010][internal quotation marks omitted]; see Matter of Laing v Maryhaven Ctr. of Hope, 39AD3d at 1126). Here, claimant's unrelated health condition and his compensable injury, whilepreventing him from working in the construction industry, did not render him so disabled that hecould not pursue other employment. Claimant admits that he has not worked nor soughtemployment since shortly after his accident and has failed to participate in vocational andeducational services to which he was referred. Thus, substantial evidence supports the Board'sdetermination that claimant's separation from the labor market is voluntary in that it is due tocauses other than his compensable injuries (see Matter of Hester v Homemakers UpstateGroup, 82 AD3d at 1461).
Mercure, J.P., Spain, Stein and Garry, JJ., concur. Ordered that the decision is affirmed,without costs.