Opinion
September 29, 1970
Appeal by the employer and its insurance carrier from a decision of the Workmen's Compensation Board, filed August 7, 1969 and as amended November 7, 1969, insofar as claimant was awarded benefits for a continuing partial disability subsequent to November 1, 1966. The appellants erroneously contend that a refusal of suitable employment at the same or higher wages as before disablement automatically renders the continuing disability noncompensable. The issue raised by such a situation is whether or not there has been a voluntary withdrawal from the labor market. (See Matter of Davis v. Woolworth Co., 24 A.D.2d 817.) Upon the present record there were issues of fact as to whether or not the claimant could have accepted the proffered employment and, in any event, there were issues of fact as to whether or not she had withdrawn from the labor market, all of which were determined in the claimant's favor. The record contains substantial evidence to support the factual findings of the board that the claimant neither withdrew from the labor market nor intentionally limited her earnings. (See Matter of Marlitt v. Armour Co., Bleyl Div., 23 A.D.2d 717.) Decision affirmed, with costs to the Workmen's Compensation Board. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.