IN RE: the Claim of Daysi SANCHEZ (2024)

MEMORANDUM AND ORDER

Appeal from a decision of the Workers’ Compensation Board, filed March 30, 2023, which ruled, among other things, that claimant failed to demonstrate attachment to the labor market and suspended awards of workers’ compensation benefits.

Claimant, a factory worker, established a workers’ compensation claim for work-related injuries to the left knee, low back and consequential depression, and was awarded benefits for temporary partial disability at various tentative rates.  Proceedings ensued and, following a hearing, claimant was directed to provide evidence of labor market attachment.  Based upon claimant's subsequent submissions and later hearing testimony, a Workers’ Compensation Law Judge found that claimant failed to demonstrate sufficient labor market attachment and suspended the awards.  Upon administrative appeal, the Workers’ Compensation Board, among other things, affirmed the determination as to labor market attachment.  Claimant appeals.

Initially, contrary to claimant's argument that the issue of labor market attachment was prematurely addressed, “[i]mplicit in the Board's ․ finding of [a] temporary partial disability is the requirement that [the] claimant provide evidence of his [or her] attachment to the labor market” (Matter of DeWald v. Fiorella's Landscaping, 194 A.D.3d 1327, 1328, 149 N.Y.S.3d 343 [3d Dept. 2021] [internal quotation marks and citation omitted];  see Matter of Blanch v. Delta Air Lines, 204 A.D.3d 1203, 1206 n, 167 N.Y.S.3d 204 [3d Dept. 2022]).  As such, “[g]iven claimant's temporary partial degree of disability, it was entirely proper for the Board to consider whether claimant remained attached to the labor market” (Matter of Vukotic v. Prince Food Corp., 224 A.D.3d 1035, 1036, 205 N.Y.S.3d 272 [3d Dept. 2024] [internal quotation marks and citation omitted], lv. denied 42 N.Y.3d 902, 2024 WL 4125739 [2024]).

Whether a claimant has met his or her burden to demonstrate an attachment to the labor market is a factual issue for the Board to resolve, and its decision in this regard will be upheld if supported by substantial evidence in the record as a whole (see Matter of Winkelman v. Sumitomo Rubber USA, 228 A.D.3d 1153, 1156–1157, 212 N.Y.S.3d 260 [3d Dept. 2024];  Matter of Canela v. Sky Chefs, Inc., 193 A.D.3d 1216, 1216–1217, 147 N.Y.S.3d 167 [3d Dept. 2021]).  Pertinent here, “[t]he Board has found that a claimant remains attached to the labor market ․ where there is credible documentary evidence that he or she is actively seeking work within his or her medical restrictions through a timely, diligent and persistent independent job search” (Matter of Joseph v. Historic Hudson Val. Inc., 202 A.D.3d 1243, 1244, 163 N.Y.S.3d 645 [3d Dept. 2022] [internal quotation marks and citations omitted];  see Matter of Rosario v. AIG, 96 A.D.3d 1111, 1112, 947 N.Y.S.2d 183 [3d Dept. 2012]).  The record here reflects that claimant submitted numerous employment applications during the relevant time period, however, she acknowledged during her hearing testimony that many of the positions that she applied for required work outside of her medical restrictions.  Accordingly, notwithstanding proof that could support a contrary conclusion, substantial evidence supports the Board's finding that claimant failed to demonstrate labor market attachment through “an independent job search within [her] medical restrictions” (Matter of Cole v. Consolidated Edison Co. of N.Y., Inc., 125 A.D.3d 1084, 1085, 3 N.Y.S.3d 769 [3d Dept. 2015];  see Matter of Vukotic v. Prince Food Corp., 224 A.D.3d at 1036–1037, 205 N.Y.S.3d 272;  compare Matter of Canela v. Sky Chefs, Inc., 193 A.D.3d at 1217, 147 N.Y.S.3d 167 ).

Finally, “[w]hether a claimant has voluntarily withdrawn from the labor market by failing to accept a light-duty assignment is a factual determination to be made by the Board, which will not be disturbed if supported by substantial evidence” (Matter of North v. New Venture Gear, 56 A.D.3d 931, 931, 867 N.Y.S.2d 258 [3d Dept. 2008];  see Matter of Jesco v. Norampac Mfg. Co., 123 A.D.3d 1360, 1361, 999 N.Y.S.2d 589 [3d Dept. 2014]).  The employer provided claimant with a written offer for light-duty work.  Despite the fact that the record indicates that the position offered would ordinarily include certain tasks outside of claimant's limitations, the offer that she was provided expressly took into consideration her medical restrictions.  Significantly, claimant testified that, even if within her medical restrictions, she would not accept an offer of light-duty work because of persistent pain.  Substantial evidence thus supports the Board's determination that claimant voluntarily withdrew from the labor market by failing to accept a light-duty assignment within her medical restrictions (see Matter of Browne v. Medford Multicare, 89 A.D.3d 1173, 1174, 931 N.Y.S.2d 924 [3d Dept. 2011];  Matter of North v. New Venture Gear, 56 A.D.3d at 931, 867 N.Y.S.2d 258;  Matter of Soop v. Borg Warner Automotive, 21 A.D.3d 668, 669, 799 N.Y.S.2d 673 [3d Dept. 2005];  Matter of Barbuto v. Albany County Sheriff's Dept., 303 A.D.2d 798, 799, 755 N.Y.S.2d 761 [3d Dept. 2003];  compare Matter of Canela v. Sky Chefs, Inc., 193 A.D.3d at 1216–1217, 147 N.Y.S.3d 167).

ORDERED that the decision is affirmed, without costs.

McShan, J.

Egan Jr., J.P., Aarons, Pritzker and Lynch, JJ., concur.