Claim of Zamora v. New York Neurologic Associates

Spain, J. Appeal from a decision of the Workers’ Compensation Board, filed March 13, 2009, which, among other things, denied claimant’s claim for workers’ compensation benefits. In 2003, claimant, a phlebotomist, was injured at work when she was struck by a falling computer monitor. She applied for and received workers’ compensation benefits, and was ultimately [1472] found to suffer from a permanent partial disability. Claimant left her employment in 2007, leading the employer and its workers’ compensation carrier (hereinafter collectively referred to as the employer) to question whether she had voluntarily withdrawn from the labor market. After a hearing, a workers’ compensation law judge concluded that she had not. Upon review, the Workers’ Compensation Board agreed, but held that her subsequent efforts to find work were insufficient to establish an attachment to the labor market and suspended benefits as of August 2008. Claimant now appeals. We reverse. The parties do not take issue with the Board’s finding that claimant did not voluntarily withdraw from the workforce when she left her job in 2007. Accordingly, an inference arose that claimant’s subsequent loss of wages was attributable to her disability, and 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” (Matter of Johnson v Onondaga Heating & A.C., 301 AD2d 903, 905 [2003]; see Matter of Dudlo v Polytherm Plastics, 125 AD2d 792, 793 [1986]). This inference arises regardless of whether the Board’s finding of involuntary withdrawal from the labor market was caused by retirement or, as here, simply a failure to return to work (see Matter of Laing v Maryhaven Ctr. of Hope, 39 AD3d 1125, 1126 [2007], lv denied 9 NY3d 805 [2007]; Matter of Louman v Premier Staffing, LLC, 12 AD3d 815, 816 [2004] ; Matter of Johnson v Onondaga Heating & A.C., 301 AD2d at 904-905). While a claimant’s failure to look for work may be relevant in challenging a claimant’s continued right to benefits in these situations, such evidence, standing alone, is insufficient to rebut the inference (see Matter of Laing v Maryhaven Ctr. of Hope, 39 AD3d at 1126; Matter of Bryant v New York City Tr. Auth., 31 AD3d 936, 938 [2006]; Matter of Tipping v National Surface Cleaning Mgt., Inc., 29 AD3d 1200, 1200-1201 [2006]; Matter of Pepe v City & Suburban, 29 AD3d 1184, 1185-1186 [2006]). Indeed, the employer must show “that the failure to seek employment was the sole cause of the subsequent reduction” (Matter of Pittman v ABM Indus., Inc., 24 AD3d 1056, 1058 [2005] [emphasis added]; see Matter of Tipping v National Surface Cleaning Mgt., Inc., 29 AD3d at 1200-1201). Here, claimant not only sought work after leaving employment but found it on two occasions, only to discover that her disability prevented her from performing her new duties. As the employer produced nothing to show that any inadequacies in claimant’s job search were the sole cause of her continued unemployment, [1473] substantial evidence does not support the Board’s determination. Mercure and Lahtinen, JJ., concur.