IN RE: the Claim of Diane WHITE (2008)

Appeal from a decision of the Workers' Compensation Board, filed August 15, 2007, which granted the workers' compensation carrier's request to reopen the claim.

Claimant, a nurse, sustained a work-related injury to her neck and back while lifting medical equipment.  The parties ultimately stipulated to a finding that claimant suffered a permanent partial disability and a Workers' Compensation Law Judge directed payment to claimant at a rate of $292.72 per week, with no further action planned at that time.  Subsequently, the employer's workers' compensation carrier sent claimant a form requesting, among other things, information as to her current employment and search for work within her medical restrictions.  When claimant left blank the portions of the form requesting this information, the carrier submitted a request for further action to determine whether there had been a voluntary removal from the labor market.  Because regular hearings were not being scheduled on claimant's case, the Workers' Compensation Board treated the request as an application to reopen and, upon review, reopened the case on the issue of claimant's continued eligibility for benefits.  Claimant appeals, and we affirm.

 The Board retains jurisdiction to reopen a claim in the interest of justice (see 12 NYCRR 300.14[a][3];  see also Workers' Compensation Law § 123) and, absent an abuse of discretion, the Board's exercise of that power will not be disturbed on appeal (see Matter of Cagle v. Judge Motor Corp., 31 A.D.3d 1016, 1017, 819 N.Y.S.2d 333 [2006], lv. dismissed 7 N.Y.3d 922, 827 N.Y.S.2d 690, 860 N.E.2d 992 [2006];  Matter of Naylon v. Erie County Highway Dept., 14 A.D.3d 932, 933, 787 N.Y.S.2d 719 [2005] ).  Furthermore, where, as here, “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” (Matter of Peck v. James Sq. Nursing Home, 34 A.D.3d 1033, 1034, 823 N.Y.S.2d 630 [2006];  see Matter of Laing v. Maryhaven Ctr. of Hope, 39 A.D.3d 1125, 1126, 834 N.Y.S.2d 398 [2007], lv. denied 9 N.Y.3d 805, 842 N.Y.S.2d 781, 874 N.E.2d 748 [2007] ).  Consequently, claimant's failure to look for work was a relevant factor to be considered regarding her entitlement to ongoing benefits (see Matter of Laing v. Maryhaven Ctr. of Hope, 39 A.D.3d at 1126, 834 N.Y.S.2d 398;  Matter of Pittman v. ABM Indus., Inc., 24 A.D.3d 1056, 1057, 806 N.Y.S.2d 301 [2005] ).

 In connection with its application for further action, the carrier submitted claimant's responses to its questionnaire, which left unanswered the sections regarding her search for employment.  In our view, the Board rationally concluded that claimant's failure to provide this information raised an issue of fact as to whether her benefits should be suspended or reduced (see Matter of Peck v. James Sq. Nursing Home, 34 A.D.3d at 1033–1034, 823 N.Y.S.2d 630).  Further, although the issue of voluntary withdrawal had not been raised before the Workers' Compensation Law Judge, the carrier's failure to do so “do[es] not restrict the Board's power to reopen a case in the interest of justice” (Matter of Naylon v. Erie County Highway Dept., 14 A.D.3d at 933, 787 N.Y.S.2d 719;  see 12 NYCRR 300.14[a][3] ).  Therefore, we find that the Board's decision to reopen the case to further explore this issue was not an abuse of discretion (see Matter of Naylon v. Erie County Highway Dept., 14 A.D.3d at 933, 787 N.Y.S.2d 719).

Claimant's remaining contentions have been reviewed and found to be lacking in merit.

ORDERED that the decision is affirmed, without costs.

PETERS, J.

CARDONA, P.J., MERCURE, CARPINELLO and KAVANAGH, JJ., concur.