IN RE: the Claim of Brenda PECK (2006)

Appeal from a decision of the Workers' Compensation Board, filed March 14, 2005, which, inter alia, rescinded awards pending claimant's production of documentary proof of attachment to the labor market.

Claimant sustained a compensable injury to her right leg in 1992 and a consequential back injury thereafter.   In a decision after a hearing in August 1995, a Workers' Compensation Law Judge (hereinafter WCLJ) found claimant to have a permanent partial disability, and directed payment at the permanent rate of $114 per week.   In July 2003 and January 2004, the employer's workers' compensation carrier requested information regarding claimant's search for work within her medical restrictions and, when such information was not produced, the carrier submitted a request for further action to determine whether there had been a voluntary removal from the labor market.   A WCLJ directed claimant to submit a record of her job search for employment within her medical restrictions to the carrier.   Following claimant's failure to timely comply with that directive, and after a hearing at which virtually no evidence was adduced regarding claimant's search for employment, compensation was directed to continue at the tentative rate of $114 per week.   The carrier sought review of that decision before the Workers' Compensation Board.   The Board reversed the decision of the WCLJ on the ground that claimant had an obligation to seek work within her medical restrictions and suspended compensation, without prejudice, pending claimant's production of evidence of her job search.   Claimant appeals, and we affirm.

 Where a claimant has a permanent partial disability but there has been no finding of involuntary retirement, the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions (see Matter of Rothe v. United Med. Assoc., 18 A.D.3d 1093, 795 N.Y.S.2d 394 [2005];  Matter of Capezzuti v. Glens Falls Hosp., 282 A.D.2d 808, 810, 722 N.Y.S.2d 620 [2001];  Matter of Dudlo v. Polytherm Plastics, 125 A.D.2d 792, 793-794, 509 N.Y.S.2d 899 [1986];  compare Matter of Bryant v. New York City Tr. Auth., 31 A.D.3d 936, 819 N.Y.S.2d 150 [2006];  Matter of Tipping v. National Surface Cleaning Mgt., 29 A.D.3d 1200, 816 N.Y.S.2d 202 [2006];  Matter of Leeber v. LILCO, 29 A.D.3d 1198, 816 N.Y.S.2d 205 [2006];  Matter of Pepe v. City & Suburban, 29 A.D.3d 1184, 816 N.Y.S.2d 208 [2006];  Matter of Pittman v. ABM Indus., 24 A.D.3d 1056, 1057-1058, 806 N.Y.S.2d 301 [2005] [finding of involuntary retirement due to permanent partial disability gives rise to rebuttable inference that reduction in earnings was due to permanent partial disability];  Matter of Jiminez v. Waldbaums, 9 A.D.3d 99, 100, 780 N.Y.S.2d 799 [2004] ).   Here, because there was no finding that claimant had involuntarily retired, the Board did not err in requiring her to demonstrate a search for employment within her medical restrictions.

ORDERED that the decision is affirmed, without costs.

SPAIN, J.

CARDONA, P.J., PETERS, MUGGLIN and KANE, JJ., concur.