Okonski v. Pollio Dairy Products Corp.

Casey, J. Appeals from a decision and an amended decision of the Workers’ Compensation Board, filed July 12, 1990 and June 24, 1991, which, inter alia, ruled that claimant did not voluntarily leave the labor market and that she sustained a causally related partial disability. Claimant sustained a work-related back injury in September 1987 and was paid benefits at a temporary total disability rate. Medical examinations conducted in December 1987 and January 1988 established that claimant could return to light duty employment adapted to her continuing partial disability and the employer offered claimant such work, to begin January 18, 1988. The employer contends that claimant’s loss of [872] wages after that date was not due to her partial disability, but resulted from her failure to accept the offer of light duty employment. The issue of whether a partially disabled claimant’s failure to accept light duty work constitutes a voluntary withdrawal from the labor market is a factual one, and if supported by substantial evidence the Workers’ Compensation Board’s decision on that issue cannot be disturbed (Matter of Olmstead v Royal Ins. Co., 130 AD2d 852). In the case at bar, the Board concluded that claimant did not quit her job or withdraw from the labor market, but had acted in a reasonable and conscientious manner under the circumstances. In particular, the Board found claimant’s initial response to the offer, which required her to work the night shift, to be reasonable in light of claimant’s prior experiences with the impact that her working the night shift had on her daughter’s well-being. The Board also accepted claimant’s testimony concerning her numerous telephone calls to her employer’s human resource manager which were ignored, as was a letter stating that although she wanted to work days, she needed the job and would work nights if necessary. Based upon our review of the record, we see no basis to disturb the Board’s finding that claimant did not voluntarily withdraw from the labor market. Mikoll, J. P., Levine, Crew III and Harvey, JJ., concur. Ordered that the decision and amended decision are affirmed, with one bill of costs.