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In the Matter of the Claim of v. Medford Multicare et al

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


November 3, 2011

IN THE MATTER OF THE CLAIM OF KIMBERLY BROWNE, APPELLANT,
v.
MEDFORD MULTICARE ET AL.,
RESPONDENTS. WORKERS' COMPENSATION BOARD, RESPONDENT.

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.

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

MEMORANDUM AND ORDER

Calendar Date: September 9, 2011

Before: Mercure, J.P., Malone Jr., Kavanagh, McCarthy and Egan Jr., JJ.

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workers' compensation carrier (hereinafter collectively referred to as the employer) asserted that she had voluntarily withdrawn from the labor market.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 AD3d 1028, 1028 [2008]; Matter of North v New Venture Gear, 56 AD3d 931, 931 [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 AD2d 709 [2003]; cf. Matter of Smith v Waterview Nursing Home, 13 AD3d 744, 745 [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 AD3d 582, 583-584 [2006]; Matter of Testani v Aramark Servs., 306 AD2d at 709).

Claimant's remaining arguments, to the extent they are properly before us, have been reviewed and found to be without merit.

Malone Jr., Kavanagh, McCarthy and Egan Jr., JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

20111103

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