Claim of Smith v. Twa

Appellate Division of the Supreme Court of New York

Claim of Smith v. Twa

90 A.D.3d 1171, 933 N.Y.2d 915

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 8, 2011

StatusPublished

Cited by1 cases

This text of 90 A.D.3d 1171 (Claim of Smith v. Twa) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Smith v. Twa, 90 A.D.3d 1171, 933 N.Y.2d 915 (N.Y. Ct. App. 2011).

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Opinion

Lahtinen, J.

We affirm. “Whether a claimant’s withdrawal from the labor market is voluntary presents a factual issue to be determined by the Board, and we will affirm that determination if it is supported by substantial evidence” (Matter of Laing v Maryhaven Ctr. of Hope, 39 AD3d 1125, 1126 [2007], lv denied 9 NY3d 805 [2007] [citations omitted]; see Matter of German v Target Corp., 77 AD3d 1126, 1126 [2010]). Here, the medical experts opined that claimant was capable of returning to work with some restrictions and the Board so found. Claimant acknowledged that she had not worked since August 2001, she refused to return to work when her employer offered her the opportunity to do so, she made no efforts to seek other employment within her restrictions, and she failed to pursue available vocational or employment services. Substantial evidence supports the Board’s determination that claimant voluntarily withdrew from the labor market (see Matter of Bobbitt v Peter Charbonneau Constr., 85 AD3d 1351, 1352 [2011]; Matter of Hester v Homemakers Upstate Group, 82 AD3d 1461, 1461 [2011], lv denied 17 NY3d 704 [2011]; Matter of German v Target Corp., 77 AD3d at 1127).

Peters, J.E, Stein, McCarthy and Garry, JJ., concur. Ordered that the decision is affirmed, without costs.

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Lahtinen, J.

We affirm. “Whether a claimant’s withdrawal from the labor market is voluntary presents a factual issue to be determined by the Board, and we will affirm that determination if it is supported by substantial evidence” (Matter of Laing v Maryhaven Ctr. of Hope, 39 AD3d 1125, 1126 [2007], lv denied 9 NY3d 805 [2007] [citations omitted]; see Matter of German v Target Corp., 77 AD3d 1126, 1126 [2010]). Here, the medical experts opined that claimant was capable of returning to work with some restrictions and the Board so found. Claimant acknowledged that she had not worked since August 2001, she refused to return to work when her employer offered her the opportunity to do so, she made no efforts to seek other employment within her restrictions, and she failed to pursue available vocational or employment services. Substantial evidence supports the Board’s determination that claimant voluntarily withdrew from the labor market (see Matter of Bobbitt v Peter Charbonneau Constr., 85 AD3d 1351, 1352 [2011]; Matter of Hester v Homemakers Upstate Group, 82 AD3d 1461, 1461 [2011], lv denied 17 NY3d 704 [2011]; Matter of German v Target Corp., 77 AD3d at 1127).

Peters, J.E, Stein, McCarthy and Garry, JJ., concur. Ordered that the decision is affirmed, without costs.

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90 A.D.3d 1171, 933 N.Y.2d 915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-smith-v-twa-nyappdiv-2011.

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