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In the Matter of the Claim of Corazon Smith v. Twa et al

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


December 8, 2011

IN THE MATTER OF THE CLAIM OF CORAZON SMITH, APPELLANT,
v.
TWA ET AL., RESPONDENTS. WORKERS' COMPENSATION BOARD, RESPONDENT.

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.

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

MEMORANDUM AND ORDER

Calendar Date: October 12, 2011

Before: Peters, J.P., Lahtinen, Stein, McCarthy and Garry, JJ.

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Judge eventually determined, among other things, that she had a permanent partial disability and had not voluntarily withdrawn from the labor market.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 AD3d 1125, 1126 [2007], lv denied 9 NY3d 805 [2007] [citations omitted]; see Matter of German v Target Corp., 77 AD3d 1126, 1126 [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 AD3d 1351, 1352 [2011]; Matter of Hester v Homemakers Upstate Group, 82 AD3d 1461, 1461 [2011], lv denied 17 NY3d 704 [2011]; Matter of German v Target Corp., 77 AD3d at 1127).

Peters, J.P., Stein, McCarthy and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20111208

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