COURT OF APPEALS ADDRESSES INVOLUNTARY WITHDRAWAL FROM THE LABOR MARKET

Zamora v. New York Neurologic, 19 N.Y.3d 186 (2012)

The Court of Appeals reversed the Appellate Division.  The claimant stopped work in December of 2007, due to various health issues such as migraines, numbness in [her] hand, [and] back pain.  In 2008, she sought both general phlebotomy jobs and customer service positions.  She had two extremely brief periods of employment as a phlebotomist at New York hospitals.  She was found to have involuntarily withdrawn from the labor market. 

The Board found that she failed to conduct a reasonable job search since the jobs under consideration by the claimant were not reasonable given her work restrictions, which primarily involved her unrelated low back condition.  The Board therefore ruled that, she had not established attachment to the labor market and continuing entitlement to benefits.

The Appellate Division found based upon the finding of involuntary withdrawal that she was entitled to a presumption that any subsequent loss of earnings was attributable to her disability and reinstated awards.

The Court of Appeals reversed and clarified that there is no presumption that her post-accident loss of wages is attributable to physical limitations caused by the accident.  The correct principle is that the Board may, but need not, infer that the claimant cannot find a suitable job because of her disability.

The Court also commented regarding the other “presumption” that a claimant’s work-related permanent partial disability allows an inference that a subsequent loss of wages is attributable to physical limitations.  This also should be treated as an inference that is permitted rather than presumed.

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