IN RE: the Claim of Rolando CANELA (2021)

MEMORANDUM AND ORDER

Appeal from a decision of the Workers' Compensation Board, filed August 5, 2019, which ruled, among other things, that claimant demonstrated an attachment to the labor market.

Claimant, a caterer, sustained a work-related injury to his back in May 2018.  He was thereafter awarded workers' compensation benefits at a temporary partial disability rate, at which point the employer and its workers' compensation carrier (hereinafter collectively referred to as the carrier) raised the issue of labor market attachment.  A Workers' Compensation Law Judge subsequently determined that claimant had voluntarily withdrawn from the labor market and withheld further benefits, finding that claimant had refused the employer's offer of light-duty work and that his independent job search was inadequate.  Upon review, the Workers' Compensation Board disagreed and rescinded those findings.  The carrier appeals, and we affirm.

“Whether claimant's failure to accept a light-duty assignment constituted a voluntary withdrawal from the labor market presented a factual issue for the Board, the resolution of which will be upheld if supported by substantial evidence” (Matter of Browne v. Medford Multicare, 89 A.D.3d 1173, 1174, 931 N.Y.S.2d 924 [2011] [citations omitted];  accord Matter of Jesco v. Norampac Mfg. Co., 123 A.D.3d 1360, 1361, 999 N.Y.S.2d 589 [2014]).  The employer wrote a December 2019 letter to claimant after he was cleared for light-duty work, vaguely assuring that it provided a “safe work environment” for its employees and warning that his job would be in jeopardy if he failed to reach out to obtain a new work schedule.  Notably absent from the letter, however, is any indication that the employer had a specific position ready for claimant that was within his medical limitations.  In the absence of any other proof on that point, substantial evidence in the record supports the Board's determination that claimant did not reject an actual offer of suitable work (see Matter of Bentvena v. City & Suburban, 57 A.D.3d 1028, 1029, 868 N.Y.S.2d 395 [2008];  Matter of Smith v. Waterview Nursing Home, 13 A.D.3d 744, 745, 786 N.Y.S.2d 247 [2004];  Matter of Hatter v. New Venture Gear, 305 A.D.2d 757, 758, 759 N.Y.S.2d 573 [2003]).

Finally, notwithstanding proof that could support a contrary conclusion, substantial evidence in the record also supports the Board's determination that claimant “engaged in an independent job search within his medical restrictions, thereby demonstrating attachment to the labor market” (Matter of Cole v. Consolidated Edison Co. of N.Y., Inc., 125 A.D.3d 1084, 1085, 3 N.Y.S.3d 769 [2015];  see Matter of Zamora v. New York Neurologic Assoc., 19 N.Y.3d 186, 191–193, 947 N.Y.S.2d 788, 970 N.E.2d 823 [2012]).  The Board appropriately found that claimant had submitted proof of “a timely, diligent and persistent job search” after he was determined to have a temporary partial disability, namely, about two dozen online applications for jobs that he was mostly qualified to perform and that were not obviously incompatible with his physical restrictions (Matter of Palmer v. Champlain Val. Specialty, 149 A.D.3d 1342, 1342, 53 N.Y.S.3d 217 [2017]).

To the extent not addressed above, the carrier's remaining arguments have been examined and found to be lacking in merit.

ORDERED that the decision is affirmed, without costs.

Colangelo, J.

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