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In the Matter of Rocio Zamora v. New York Neurologic Associates et al

May 1, 2012

IN THE MATTER OF ROCIO ZAMORA, RESPONDENT,
v.
NEW YORK NEUROLOGIC ASSOCIATES ET AL., APPELLANTS, WORKERS' COMPENSATION BOARD, APPELLANT.



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

This opinion is uncorrected and subject to revision before publication in the New York Reports.

In this appeal we are called upon to decide whether the Workers' Compensation Board must infer, from the finding that a claimant withdrew from her employment due to an accident at her work place, that her post-accident loss of wages is attributable to physical limitations caused by the accident. We hold that the Board is not required to draw that inference.

Claimant Rocio Zamora was working as a phlebotomist for New York Neurologic Associates, on January 29, 2003, when a computer monitor fell off a shelf and struck her upper back. She suffered a torn tendon in her left shoulder and two herniated discs in the cervical spine. On April 25, 2003, Zamora told her employer that she would not be returning to work because she did not feel well enough to perform her duties. Thereafter, Zamora was employed on and off, on a part-time basis, receiving Workers' Compensation benefits for her loss of wages attributable to the accident. She underwent spinal surgery in December 2005. On January 18, 2007, Zamora returned to full-duty work as a phlebotomist.

On May 29, 2007, following a hearing, the Workers' Compensation Board classified Zamora with a permanent partial disability. No benefits were ordered because Zamora was engaged in full-duty work at the time. Zamora continued to work until December 21, 2007, when various health issues forced her to quit. As she later explained, she had "migraines, numbness in [her] hand, [and] back pain" and she found it difficult to "use [her] hands to do the blood pressure and draw blood."

In 2008, Zamora posted her resume on job-search websites, seeking both general phlebotomy jobs and customer service positions. She had two extremely brief periods of employment as a phlebotomist at New York hospitals. On May 22, 2008, a Workers' Compensation Law Judge "continued" Zamora's case so that a hearing could be held on issues including whether she had voluntarily withdrawn from the labor market.

At the hearing, held on August 5, 2008 before a Workers' Compensation Judge, Zamora testified concerning her health and her attempts to find employment. Asked what injuries contributed to her disability, she mentioned her neck and shoulder, as well as health issues that she said were unrelated to her workplace accident, namely migraines, hernias, and pinched nerves in her lower back. Questioned about her attempts to find work, Zamora explained that she was trying to look for a job that was "lighter," or less physically taxing, than a phlebotomist position. She had submitted her resume for customer service positions, but those jobs and others she had tried to get required more lifting or standing than she could manage, because of her lower back condition and hernias.

The Workers' Compensation Judge found that Zamora had made a valid effort to find work and "had not voluntarily removed herself from the labor market." The insurance carrier of New York Neurologic Associates sought review by the Workers' Compensation Board.

On March 13, 2009, the Board denied Zamora's claim for benefits after December 21, 2007. The Board found that Zamora had "failed to conduct a reasonable job search" after December 2007, in that the "jobs under consideration by the claimant were not reasonable given her work restrictions, which primarily involve her unrelated low back condition." The Board therefore ruled that, although Zamora's original withdrawal from the job market was not voluntary, she had not established attachment to the labor market and continuing entitlement to benefits.

The Appellate Division, in a 3-2 decision, reversed the Board's determination (79 AD3d 1471). The majority inferred, from the fact that Zamora did not voluntarily withdraw from the workforce in 2007, that her "subsequent loss of wages was attributable to her disability," adding that "it was incumbent upon the employer to rebut the inference of causation or prove that the reduction in employment was solely due to factors unrelated to the disability" (id. at 1472 [internal quotation marks omitted]). We now reverse.

As this Court recently noted, a central question for the Board to resolve, before awarding wage replacement benefits in a nonschedule permanent partial disability case, is "whether a claimant has maintained a sufficient attachment to the labor market" (Burns v Varriale, 9 NY3d 207, 216 [2007]; see Matter of Jordan v Decorative Co., 230 NY 522, 526-527 [1921]). By finding alternative work consistent with his or her physical limitations, or at least showing reasonable efforts at finding such work, the claimant can prove to the Board that the cause of his or her reduced income is a disability, rather than unwillingness to work again. "Claimant must demonstrate that his or her reduced earning capacity is due to the disability, not . . . factors unrelated to the disability" (Burns, 9 NY3d at 216).

In reaching its decision on this question, the Board will, of course, consider the circumstances under which claimant originally stopped full-duty work. "If the Board determines that a workers' compensation claimant has a permanent partial disability and that the claimant retired from his or her job due to that disability, an inference that his or her reduced future earnings resulted from the disability may be drawn" (id. [emphasis added]). The same is true regardless of whether claimant has completely retired from the work force or merely withdrawn from the particular employment in which she was engaged at the time of her accident. An inference of causation may be drawn from the disability-related withdrawal, depending on the nature of the disability and the nature of the claimant's work.

In many of its decisions, the Third Department has noted, correctly, that "a claimant's work-related permanent partial disability allows an inference that a subsequent loss of wages is attributable to physical limitations" (Matter of Coyle v Intermagnetics Corp., 267 AD2d 621, 622 [3d Dept 1999] [emphasis added]; see also e.g. Matter of Mazziotto v Brookfield Constr. Co., 40 AD2d 245, 247 [3d Dept 1972]; Matter of Miller v Pan Am. World Airways, 46 AD2d 718 [3d Dept 1974]). Recently, however, the Third Department has treated the inference as required, or presumed, rather than merely permitted. For example, the court has written that "once claimant's work-related permanent partial disability has been established, an inference will arise that the subsequent loss of wages was attributable to these physical limitations" (Matter of Johnson v Onondaga Heating & A.C. (301 AD2d 903, 905 [3d Dept 2003] [internal quotation marks and square brackets omitted; emphasis added]; see also e.g. Matter of Pittman v ABM Indus., Inc., 24 AD3d 1056, 1057-1058 [3d Dept 2005]; Matter of Dudlo v Polytherm Plastics, 125 AD2d 792, 793 [3d Dept 1986]).

The correct principle is the former one; the Board may, but need not, infer that the claimant cannot find a suitable job because of her disability. If, for example, the Board considers a disability to be one that prevents the claimant from pursuing the trade in which he was engaged at the time of the accident, while allowing him to undertake many other jobs that pay as well, it will likely not make the inference. The Third Department's recent doctrine that the Board must find causation "effectively created [a] . . . presumption out of an inference" (Matter of Tipping v National Surface Cleaning Mgt., Inc., 29 AD3d 1200, 1201 [3d Dept 2006] [Carpinello, J., concurring]; see also 79 AD3d at 1473 [Cardona, P.J., Garry, J., dissenting]). There is no precedent in our decisions for this theory, which would illogically constrain the ability of the Board to find facts, and would shift the burden of proof from claimant to employer. Consequently, the Appellate Division's decision below was in error.

Finally, we consider the Board's finding that, as of August 2008, Zamora had not made a reasonable search for work consistent with her physical restrictions. That determination is a factual one that an appellate court must uphold as long as there is substantial evidence to support it (see generally Matter of Capizzi v Southern Dist. Reporters, 61 NY2d 50, 54 [1984]; Matter of Axel v Duffy-Mott Co., 47 NY2d 1, 6 [1979]). We may not weigh the evidence or reject the Board's choice simply because a contrary determination would have been reasonable. Here, the evidence concerning the types of work that Zamora had attempted to find and her lack of success in those endeavors, together with the absence of evidence of attempts to find less ...


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