State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 21, 2016 520603 

________________________________

In the Matter of the Claim of

EDELMIRO CRUZ,

Respondent,

v

MEMORANDUM AND ORDER

BUFFALO BOARD OF EDUCATION 

et al.,

Appellants.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: March 21, 2016

Before: Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

__________

Hamberger & Weiss, Buffalo (Renee E. Heitger of counsel),

for appellants.

Eric T. Schneiderman, Attorney General, New York City

(Donya Fernandez of counsel), for Workers' Compensation Board,

respondent.

__________

Clark, J.

Appeal from a decision of the Workers' Compensation Board,

filed June 9, 2014, which ruled, among other things, that

claimant demonstrated an attachment to the labor market.

Claimant worked as an assistant principal at an elementary

school and sustained work-related injuries on May 25, 2011. He

was awarded workers' compensation benefits, which continued until

he returned to work on August 22, 2011. His employment was
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terminated in February 2012. Claimant thereafter sought

additional causally related lost earnings and the self-insured

employer and its third-party administrator (hereinafter

collectively referred to as the employer) raised the issue of

attachment to the labor market. Following hearings, the employer

raised the issue of whether claimant had violated Workers'

Compensation Law § 114-a based upon alleged misrepresentations

regarding his search for work. A Workers' Compensation Law Judge

(hereinafter WCLJ) denied benefits, finding that, due to a lack

of a sufficient effort to find work, claimant had voluntarily

removed himself from the labor market. Further, the WCLJ found

that claimant had violated Workers' Compensation Law § 114-a and

disqualified him from further benefits. Upon review, the

Workers' Compensation Board concluded that the employer had not

submitted sufficient evidence that claimant had violated Workers'

Compensation Law § 114-a. Although the Board affirmed the WCLJ's

determination that claimant had voluntarily removed himself from

the labor market following his termination, the Board also found

that he had reattached to the labor market in February 2013. 

Accordingly, the Board restored the case to the calendar to

address the issue of claimant's reduced earnings subsequent to

February 2013. The employer now appeals.

We affirm. "A claimant must demonstrate attachment to the

labor market with evidence of a search for employment consistent

with his or her medical restrictions" (Matter of Watts v Arnot

Ogden Med. Ctr., 132 AD3d 1024, 1025 [2015]; see Matter of Cole v

Consolidated Edison Co. of N.Y., Inc., 125 AD3d 1084, 1085

[2015]; Matter of Scott v Rochester City Sch. Dist., 125 AD3d

1083, 1083-1084 [2015]). The Board's determination as to whether

a claimant has demonstrated an attachment to the labor market

will be upheld if supported by substantial evidence (see Matter

of Watts v Arnot Ogden Med. Ctr., 132 AD3d at 1025). Here,

medical evidence in the record reflects that, on account of his

injuries, claimant could only sit or stand for no more than two

hours a day and he could not lift more than 20 pounds. Claimant

testified that he began using the services of the Office of

Vocational and Educational Services for Individuals with

Disabilities (hereinafter VESID) in January 2013. Claimant also

testified that he obtained a part-time job at an auto parts store

in February 2013, albeit for only five hours a week at the time
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of his testimony. According to claimant, he was training for a

management position that offered more hours, and the store was

willing to accommodate his restrictions. Further, claimant

testified that he was still searching for other work with a VESID

job counselor. Based upon the foregoing, the Board's decision

that claimant had reattached to the labor market as of February

2013 is supported by substantial evidence. 

Regarding the employer's contention that claimant made a

material misrepresentation in violation of Workers' Compensation

Law § 114-a, the Board's determination as to this issue will not

be disturbed if supported by substantial evidence (see Matter of

Poulton v Griffin Mfg. Co., 102 AD3d 1071, 1071 [2013]; Matter of

Ridgeway v RGRTA Regional Tr. Serv., 68 AD3d 1219, 1220 [2009]). 

Here, the employer relied on the report and testimony of a

vocation counselor, who contacted 34 companies by telephone with

which claimant reported that he had filed an application for

employment between February 2012 and February 2013. She could

only confirm that two of the companies had received an

application from him. She further testified, however, that 17

companies either did not respond or could not verify whether or

not they had received an application and the witness conceded

that claimant could have applied for employment with them. While

the witness testified that the remaining 15 companies told her

that they did not have an application from claimant on file, the

Board noted that she did not report the name of the individuals

she had spoken with and concluded that, although claimant had not

presented sufficient evidence to establish that he had remained

attached to the labor market during the time in question, there

was a lack of credible evidence that he had knowingly made a

false statement or misrepresented a material fact in order to

obtain benefits. Inasmuch as "the Board is vested with the

discretion to evaluate witness credibility and to weigh

conflicting evidence" (Matter of Hadzaj v Harvard Cleaning Serv.,

77 AD3d 1000, 1001 [2010], lv denied 16 NY3d 702 [2011]; see

Matter of Borgal v Rochester-Genesee Regional Transp. Auth., 108

AD3d 914, 915 [2013]), the Board's decision is supported by

substantial evidence and will not be disturbed. 

Garry, J.P., Egan Jr., Lynch and Devine, JJ., concur.
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ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court