| Matter of Rosario v AIG |
| 2012 NY Slip Op 04434 [96 AD3d 1111] |
| June 7, 2012 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Minerva Rosario,Appellant, v AIG et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Weiss, Wexler & Wornow, P.C., New York City (Michael J. Reynolds of counsel), for AIGand another, respondents.
Stein, J. Appeal from a decision of the Workers' Compensation Board, filed March 23, 2010,which ruled that claimant voluntarily removed herself from the labor market.
In August 1998, claimant, an accountant, ceased working and subsequently applied forworkers' compensation benefits, claiming, among other things, injuries to her arms, hands,shoulders, elbows, back and neck based upon repetitive movement associated with heremployment. In 2001, her claim was established for bilateral carpal tunnel syndrome, with a dateof disablement of November 3, 1998. Surgery was authorized for claimant's back in 2003 and, in2006, the parties stipulated that claimant was permanently partially disabled.[FN1]In 2009, the employer's workers' compensation carrier submitted a request for further action todetermine [*2]whether claimant was seeking employment withinher medical restrictions as "a WA-1 was not filled out by the claimant referable to whether shewas retired or whether she was looking for work."[FN2]Following a hearing, a Workers' Compensation Law Judge denied the carrier's application tosuspend benefits, finding that claimant did not voluntarily remove herself from the labor market.The carrier appealed and, on review, the Workers' Compensation Board reversed, concluding thatclaimant had voluntarily withdrawn from the labor market by failing to search for work withinher medical restrictions. Claimant now appeals.
We affirm. "Whether a claimant has voluntarily withdrawn from the labor market is an issueof fact for the Board to resolve, and its resolution of that issue will not be disturbed if supportedby substantial evidence in the record" (Matter of Magerko v Edwin B. Stimpson Co., Inc., 67 AD3d 1267,1268 [2009] [citation omitted]; accordMatter of German v Target Corp., 77 AD3d 1126, 1126 [2010]). Under the particularfacts and circumstances of this case, claimant was required to demonstrate her attachment to thelabor market with evidence of a search for employment within her medical restrictions (see Matter of Bobbitt v Peter CharbonneauConstr., 85 AD3d 1351, 1351 [2011]; Matter of Peck v James Sq. Nursing Home, 34 AD3d 1033, 1034[2006]). The record here contains medical evidence indicating that claimant was capable ofperforming sedentary work. However, claimant admitted at the hearing that she did not search forany work from 1998 until June 2009 and had only recently applied for two sedentary jobs.Although there was evidence that could support a contrary result, inasmuch as substantialevidence exists to support the Board's determination that claimant voluntarily removed herselffrom the labor market, we decline to disturb it (see Matter of Hester v Homemakers Upstate Group, 82 AD3d1461, 1461 [2011], lv denied 17 NY3d 704 [2011]; Matter of German v TargetCorp., 77 AD3d at 1127).
Claimant's remaining contentions have been examined and are unavailing.
Spain, J.P., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the decision isaffirmed, without costs.
Footnote 1: The stipulation did not specifythe basis of claimant's disability.
Footnote 2: A WA-1 (work activity form) isa "form periodically sent to claimants requesting certification of current employment status andcontinued entitlement to worker[s'] compensation benefits" (Guide to Common Workers'Compensation Terms,http://www.nysif.com/Workers_Compensation/About_Workers_Compensation/Glossary.aspx[accessed May 2, 2012]).