IN RE: the Claim of Diana LAING

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

IN RE: the Claim of Diana LAING, Appellant, v. MARYHAVEN CENTER OF HOPE et al., Respondents. Workers' Compensation Board, Respondent.

Decided: April 26, 2007

Before:  CARDONA, P.J., CREW III, SPAIN, MUGGLIN and ROSE, JJ. Grey & Grey, L.L.P., Farmingdale (Joan S. O'Brien of counsel), for appellant. Foley, Smit, O'Boyle & Weisman, Hauppauge (Theresa E. Wolinski of counsel), for Maryhaven Center of Hope and another, respondents.

Appeal from a decision of the Workers' Compensation Board, filed March 29, 2006, which ruled that claimant voluntarily withdrew from the labor market and denied her claim for further workers' compensation benefits.

Claimant, who was injured in the course of her work in 2001, applied for workers' compensation benefits and was found to have sustained a permanent partial disability.   At a hearing held in 2005, the employer disputed her continuing inability to work and contended that she was no longer attached to the workforce.   The Workers' Compensation Board found that claimant was not entitled to further benefits because she had failed to seek suitable employment and had, thereby, voluntarily withdrawn from the labor market.   Claimant appeals.

 Whether a claimant's withdrawal from the labor market is voluntary presents a factual issue to be determined by the Board, and we will affirm that determination if it is supported by substantial evidence (see e.g. Matter of Gross v. BJ's Wholesale Club, 29 A.D.3d 1051, 1052, 814 N.Y.S.2d 372 [2006];  Matter of Louman v. Premier Staffing, LLC, 12 A.D.3d 815, 816, 784 N.Y.S.2d 246 [2004];  Matter of Yannucci v. Consolidated Freightways, 6 A.D.3d 945, 946, 775 N.Y.S.2d 193 [2004] ).   Here, at the 2005 hearing, claimant testified that she had not worked or sought employment since her accident in 2001.   While claimant also stated that the reason for not looking for work was persistent pain, the medical experts uniformly opined that she was capable of doing sedentary work.   One of her treating orthopedic surgeons testified that she could work with the restrictions that she not lift over 25 pounds and have no repetitive overhead activity.   Inasmuch as the Board is vested with the authority to decide issues of credibility and to resolve the question of whether claimant was indeed capable of performing work within the limits of her medically determined limitations (see e.g. Matter of Yannucci v. Consolidated Freightways, supra at 947, 775 N.Y.S.2d 193;  Matter of Korczyk v. City of Albany, 264 A.D.2d 908, 909, 695 N.Y.S.2d 429 [1999] ), there is substantial evidence in the record to support the Board's determination that claimant voluntarily withdrew from the labor market by not seeking such work (see Matter of Capezzuti v. Glens Falls Hosp., 282 A.D.2d 808, 810, 722 N.Y.S.2d 620 [2001];  compare Matter of Brockington v. University of Rochester, 266 A.D.2d 595, 596, 697 N.Y.S.2d 403 [1999] ).

Moreover, there is no merit to claimant's argument that the Board erred by not following the three-step analysis outlined in Matter of Leeber v. LILCO, 29 A.D.3d 1198, 1199, 816 N.Y.S.2d 205 [2006].   The threshold issue to be determined by the Board is whether claimant's permanent partial disability caused or contributed to her loss of wages.   At that step of the analysis, the failure to look for work is a relevant factor to be considered (see e.g. Matter of Louman v. Premier Staffing, LLC, supra at 816, 784 N.Y.S.2d 246;  Matter of Scarpelli v. Bevco Trucking Corp., 305 A.D.2d 892, 893, 758 N.Y.S.2d 856 [2003] ).   If the withdrawal were found to be involuntary, only then would it become inherently inconsistent to hold that a claimant is obligated to search for work within medical limitations (see e.g. Matter of Jiminez v. Waldbaums, 9 A.D.3d 99, 100, 780 N.Y.S.2d 799 [2004] ).   Here, because claimant's withdrawal was found to be voluntary at the first step of the analysis, the remaining steps did not apply and the Board was not required to proceed any further.

ORDERED that the decision is affirmed, without costs.



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