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In the Matter of the Claim of v. St. John's Hospital et al

State of New York Supreme Court, Appellate Division Third Judicial Department


February 10, 2011

IN THE MATTER OF THE CLAIM OF SAMANTHA YORK-GUNNING, RESPONDENT,
v.
ST. JOHN'S HOSPITAL ET AL., APPELLANTS. WORKERS' COMPENSATION BOARD, RESPONDENT.

The opinion of the court was delivered by: Cardona, P.J.

MEMORANDUM AND ORDER

Calendar Date: January 10, 2011

Before: Cardona, P.J., Mercure, Spain, Malone Jr. and Stein, JJ.

Appeal from a decision of the Workers' Compensation Board, filed August 20, 2008, which ruled that claimant did not voluntarily withdraw from the labor market.

Claimant, an emergency medical technician, suffered a compensable injury to her left hand in 2003. She returned to work shortly thereafter, but stopped working in 2005 and was found to suffer from carpal tunnel syndrome that was causally linked to her hand injury. As claimant remained capable of working in some capacity, the employer and its workers' compensation carrier argued that she had voluntarily removed herself from the labor market. The Workers' Compensation Board disagreed, and the employer and carrier appeal.

We affirm. Whether a claimant has voluntarily withdrawn from the labor market presents a factual question for the Board, and its resolution thereof will be sustained if supported by substantial evidence in the record (see Matter of German v Target Corp., 77 AD3d 1126, 1127 [2010]; Matter of Garifo v Pathmark Stores, Inc., 71 AD3d 1205, 1206 [2010]). Claimant here remains on the employer's payroll and would return to her job, but has been advised that no light duty assignments are available. Instead, she was referred to and has met with officials at the Office of Vocational and Educational Services for Individuals with Disabilities to discuss job options. Her involvement with that office is ongoing, although it has been slowed by administrative problems beyond her control. Moreover, the Board accurately observed that the carrier caused delays in claimant undergoing a necessary functional capacity evaluation. While claimant's treating hand surgeon has repeatedly requested that this evaluation occur, the carrier did not respond to those requests despite being directed to do so, instead scheduling the evaluation at a distant facility of its own choosing. Under these circumstances, substantial evidence supports the Board's finding that claimant did not voluntarily withdraw from the labor market.

Mercure, Spain, Malone Jr. and Stein, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

20110210

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