Opinion
2011-11-3
In the Matter of the Claim of Kimberly BROWNE, Appellant,v.MEDFORD MULTICARE et al., Respondents.Workers' Compensation Board, Respondent.
Grey & Grey, L.L.P., Farmingdale (Robert E. Grey of counsel), for appellant.Foley, Smit, O'Boyle & Weisman, Hauppauge (Theresa E. Wolinski of counsel), for Medford Multicare and another, respondents.Before: MERCURE, J.P., MALONE JR., KAVANAGH, McCARTHY and EGAN JR., JJ.
MERCURE, J.P.
Appeal from a decision of the Workers' Compensation Board, filed January 15, 2010, as amended by decision filed August
26, 2010, which ruled, among other things, that claimant voluntarily withdrew from the labor market.
Claimant, a certified nurse's aide, suffered injuries when she fell at work. Thereafter, she successfully applied for workers' compensation benefits. After she rejected the employer's offers to place her in a light-duty assignment, the employer and its workers' compensation carrier (hereinafter collectively referred to as the employer) asserted that she had voluntarily withdrawn from the labor market. The Workers' Compensation Board agreed and held that claimant had no compensable lost time following the employer's last offer of light-duty work, prompting this appeal.
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 ( see Matter of Bentvena v. City & Suburban, 57 A.D.3d 1028, 1028, 868 N.Y.S.2d 395 [2008]; Matter of North v. New Venture Gear, 56 A.D.3d 931, 931, 867 N.Y.S.2d 258 [2008] ). Here, an orthopedic surgeon who conducted several independent medical examinations of claimant opined that she had a moderate partial disability and was capable of performing light-duty work with specified restrictions. The employer accordingly offered claimant light-duty work and, contrary to her contention, the Board properly found that the last such offer was for a detailed assignment that comported with her physical limitations ( see Matter of Testani v. Aramark Servs., 306 A.D.2d 709, 760 N.Y.S.2d 694 [2003]; cf. Matter of Smith v. Waterview Nursing Home, 13 A.D.3d 744, 745, 786 N.Y.S.2d 247 [2004] ). While claimant's treating physician advised her not to accept that assignment, the Board was free to credit the orthopedist's opinion as to the degree of her disability and her ability to work with restrictions, and substantial evidence thus supports its determination that claimant voluntarily withdrew from the labor market ( see Matter of Bacci v. Staten Is. Univ. Hosp., 32 A.D.3d 582, 583–584, 820 N.Y.S.2d 160 [2006]; Matter of Testani v. Aramark Servs., 306 A.D.2d at 709, 760 N.Y.S.2d 694).
Claimant's remaining arguments, to the extent they are properly before us, have been reviewed and found to be without merit.
ORDERED that the decision is affirmed, without costs.
MALONE JR., KAVANAGH, McCARTHY and EGAN JR., JJ., concur.