State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 12, 2015 519180 

________________________________

In the Matter of the Claim of

BIENVENIDO APONTE,

Appellant,

v

NBTY, INC., et al., MEMORANDUM AND ORDER

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: January 14, 2015

Before: Peters, P.J., McCarthy, Garry and Rose, JJ.

__________

Turley Redmon Rosasco LLP, Ronkonkoma (John F. Clennan of

counsel), for appellant.

Vecchione, Vecchione & Connors, LLP, Garden City Park

(Heather N. Babits of counsel), for NBTY, Inc. and another,

respondents.

__________

Rose, J.

Appeal from a decision of the Workers' Compensation Board,

filed October 23, 2013, which ruled that claimant voluntarily

removed himself from the labor market.

Claimant was injured in March 2009 when a coworker

assaulted him, and his case was established for an injury to the

neck, back and knee. Claimant stopped working and, in 2010, the

Workers' Compensation Board determined that he had voluntarily

removed himself from the labor market. In February 2011,
-2- 519180 

claimant first found work with a pharmaceutical company and then

as a security guard until his contract expired in August 2011. 

Claimant did not work thereafter and had surgery on his neck and

back in December 2011 and May 2012, respectively. Following the

2011 surgery, claimant was found to have a marked partial

disability but, after the 2012 surgery, his pain was

significantly improved and he was found to have a moderate

partial disability. The Board ultimately concluded that claimant

failed to show attachment to the labor market and, thus, that he

was not entitled to an award for lost time after August 2011. 

Claimant appeals and we affirm.

"[B]efore awarding wage replacement benefits in a

nonschedule permanent partial disability case," the Board is

required to determine "whether a claimant has maintained a

sufficient attachment to the labor market" (Matter of Zamora v

New York Neurologic Assoc., 19 NY3d 186, 191 [2012] [internal

quotation marks and citations omitted]). That is, the Board must

determine whether a claimant's "reduced earning capacity is due

to the disability, not . . . factors unrelated to the disability"

(id.) [internal quotation marks and citation omitted]). Here,

claimant testified that he stopped working in August 2011 because

his contract as a security guard ended, a factor unrelated to his

disability. Claimant stated that he made no subsequent attempt

to search for employment within medical restrictions because he

was awaiting surgery, but admitted that his doctors did not

suggest surgery to him until approximately three months after he

ceased working, and that they had not told him that he could not

work. Although he had submitted applications to "[w]ork

agencies" prior to the time that he ceased working, claimant

admitted that he did not prepare a resume or contact the

Department of Labor to obtain rehabilitation services after

August 2011. Under these circumstances, we are constrained to

find that substantial evidence supports the Board's

determinations that claimant's separation from the labor market

was voluntary and that he failed to demonstrate that his

reduction in earnings was causally related to his disability (see

Matter of Launer v Euro Brokers, 115 AD3d 1130, 1131-1132 [2014],

lv denied 23 NY3d 906 [2014]; Matter of Bobbitt v Peter

Charbonneau Constr., 85 AD3d 1351, 1351-1352 [2011]; see also

Matter of Winters v Advance Auto Parts, 119 AD3d 1041, 1042-1043
-3- 519180 

[2014]).

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

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court