Opinion
2011-12-8
In the Matter of the Claim of Corazon SMITH, Appellant, v. TWA et al., Respondents.Workers' Compensation Board, Respondent.
Alan W. Clark & Assoc., L.L.C., Levittown (Patrick M. Quinn of counsel), for appellant. Weiss, Wexler & Wornow, P.C., New York City (Michael J. Reynolds of counsel), for TWA and another, respondents.
Alan W. Clark & Assoc., L.L.C., Levittown (Patrick M. Quinn of counsel), for appellant. Weiss, Wexler & Wornow, P.C., New York City (Michael J. Reynolds of counsel), for TWA and another, respondents.
Before: PETERS, J.P., LAHTINEN, STEIN, McCARTHY and GARRY, JJ.
LAHTINEN, J.
Appeal from a decision of the Workers' Compensation Board, filed October 6, 2009, which, among other things, ruled that claimant voluntarily withdrew from the labor market.
Claimant was injured while working as a baggage handler for the employer in 2001. She filed a claim and was awarded workers' compensation benefits. A Workers' Compensation Law Judge eventually determined, among other things, that she had a permanent partial disability and had not voluntarily withdrawn from the labor market. Upon review, the Workers' Compensation Board modified the decision finding that claimant voluntarily withdrew from the labor market and that she thus was not entitled to benefits beyond the date of the last hearing in May 2009. Claimant appeals.
We affirm. “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” ( Matter of Laing v. Maryhaven Ctr. of Hope, 39 A.D.3d 1125, 1126, 834 N.Y.S.2d 398 [2007], lv. denied 9 N.Y.3d 805, 842 N.Y.S.2d 781, 874 N.E.2d 748 [2007] [citations omitted]; see Matter of German v. Target Corp., 77 A.D.3d 1126, 1126, 909 N.Y.S.2d 562 [2010] ). Here, the medical experts opined that claimant was capable of returning to work with some restrictions and the Board so found. Claimant acknowledged that she had not worked since August 2001, she refused to return to work when her employer offered her the opportunity to do so, she made no efforts to seek other employment within her restrictions, and she failed to pursue available vocational or employment services. Substantial evidence supports the Board's determination that claimant voluntarily withdrew from the labor market ( see Matter of Bobbitt v. Peter Charbonneau Constr., 85 A.D.3d 1351, 1352, 925 N.Y.S.2d 684 [2011]; Matter of Hester v. Homemakers Upstate Group, 82 A.D.3d 1461, 1461, 918 N.Y.S.2d 762 [2011], lv. denied 17 N.Y.3d 704, 2011 WL 2535050 [2011]; Matter of German v. Target Corp., 77 A.D.3d at 1127, 909 N.Y.S.2d 562).
ORDERED that the decision is affirmed, without costs.