IN RE: the Claim of Irving ROTHE

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Irving ROTHE, Appellant, v. UNITED MEDICAL ASSOCIATES et al., Respondents. Workers' Compensation Board, Respondent.

Decided: May 26, 2005

Before:  CARDONA, P.J., MERCURE, CARPINELLO, LAHTINEN and KANE, JJ. James Rothe, Binghamton, for appellant. Levene, Gouldin & Thompson L.L.P., Binghamton (Jason M. Carlton of counsel), for United Medical Associates and another, respondents.

Appeal from a decision of the Workers' Compensation Board, filed June 29, 2004, which, inter alia, ruled that claimant voluntarily withdrew from the labor market.

 The underlying facts of this claim for workers' compensation benefits are set forth in a prior decision of this Court (2 A.D.3d 1264, 768 N.Y.S.2d 842 [2003] ) and will not be repeated here.   Currently at issue is a decision of the Workers' Compensation Board which reversed the determination of a Workers' Compensation Law Judge that claimant had demonstrated an attachment to the labor market subsequent to September 18, 2002.

 Initially, the Board's decision appears to have left intact the finding of the Workers' Compensation Law Judge that claimant sustained a permanent partial disability and could not return to his prior work as a private practice physician.   Thus, the question that remains is whether claimant maintained an attachment to the labor market subsequent to September 18, 2002.   Such determination is “ ‘a factual issue for the Board to resolve and, if supported by substantial evidence in the record, the Board's resolution of that issue will not be disturbed,’ even if there is a discrepancy in proof regarding claimant's search for employment” (Matter of Johnson v. Onondaga Heating & Air Conditioning, 301 A.D.2d 903, 904, 754 N.Y.S.2d 430 [2003], quoting Matter of Beehm v. Educational Opportunity Ctr., County of Rensselaer, 272 A.D.2d 808, 808, 709 N.Y.S.2d 221 [2000] [citation omitted] ). Here, claimant testified that he was employed as a physician on a part-time basis for the Binghamton City School District and, although he had sought additional work within his medical restrictions, the economic climate of the area limited his ability to find other positions.   Claimant also stated that he had applied for work with the state, but had not followed up on his application for more than a year.   Inasmuch as claimant did not present any evidence that his inability to obtain employment was caused by or related to his permanent partial disability, the Board's determination that claimant failed to maintain an attachment to the labor market subsequent to September 18, 2002 is supported by substantial evidence (see Matter of Walby v. Volt Info. Science, 292 A.D.2d 740, 740, 739 N.Y.S.2d 759 [2002];  Matter of Ennist v. Texaco, Inc., 280 A.D.2d 773, 773, 719 N.Y.S.2d 784 [2001] ).

ORDERED that the decision is affirmed, without costs.

LAHTINEN, J.

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

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