Argued March 20, 2012; decided May 1, 2012

Matter of Zamora v New York Neurologic Assoc., 79 AD3d 1471, reversed.

Pigott, J.

In this appeal we are called upon to decide whether the Workers' Compensation Board must infer, from the finding that a claimant withdrew from her employment due to an accident at her workplace, that her post-accident loss of wages is attributable to physical limitations caused by the accident. We hold that the Board is not required to draw that inference.

Claimant Rocio Zamora was working as a phlebotomist for New York Neurologic Associates, on January 29, 2003, when a{**19 NY3d at 190} computer monitor fell off a shelf and struck her upper [*2]back. She suffered a torn tendon in her left shoulder and two herniated discs in the cervical spine. On April 25, 2003, Zamora told her employer that she would not be returning to work because she did not feel well enough to perform her duties. Thereafter, Zamora was employed on and off, on a part-time basis, receiving workers' compensation benefits for her loss of wages attributable to the accident. She underwent spinal surgery in December 2005. On January 18, 2007, Zamora returned to full-duty work as a phlebotomist.

On May 29, 2007, following a hearing, the Workers' Compensation Board classified Zamora with a permanent partial disability. No benefits were ordered because Zamora was engaged in full-duty work at the time. Zamora continued to work until December 21, 2007, when various health issues forced her to quit. As she later explained, she had "migraines, numbness in [her] hand, [and] back pain" and she found it difficult to "use [her] hands to do the blood pressure and draw blood."

In 2008, Zamora posted her resume on job-search Web sites, seeking both general phlebotomy jobs and customer service positions. She had two extremely brief periods of employment as a phlebotomist at New York hospitals. On May 22, 2008, a Workers' Compensation Law Judge "continued" Zamora's case so that a hearing could be held on issues including whether she had voluntarily withdrawn from the labor market.

At the hearing, held on August 5, 2008 before a Workers' Compensation Law Judge, Zamora testified concerning her health and her attempts to find employment. Asked what injuries contributed to her disability, she mentioned her neck and shoulder, as well as health issues that she said were unrelated to her workplace accident, namely migraines, hernias, and pinched nerves in her lower back. Questioned about her attempts to find work, Zamora explained that she was trying to look for a job that was "lighter," or less physically taxing, than a phlebotomist position. She had submitted her resume for customer service positions, but those jobs and others she had tried to get required more lifting or standing than she could manage, because of her lower back condition and hernias.

The Workers' Compensation Law Judge found that Zamora had made a valid effort to find work and "ha[d] not voluntarily removed herself from the labor market." The insurance carrier of New York Neurologic Associates sought review by the Workers' Compensation Board.{**19 NY3d at 191}

On March 13, 2009, the Board denied Zamora's claim for benefits after December 21, 2007. The Board found that Zamora had "failed to conduct a reasonable job search" after December 2007, in that the "jobs under consideration by the claimant were not reasonable given her work restrictions, which primarily involve her unrelated low back condition." The Board therefore ruled that, although Zamora's original withdrawal from the job market was not voluntary, she had not established attachment to the labor market and continuing entitlement to benefits.

The Appellate Division, in a 3-2 decision, reversed the Board's determination (79 [*3]AD3d 1471 [2010]). The majority inferred, from the fact that Zamora did not voluntarily withdraw from the workforce in 2007, that her "subsequent loss of wages was attributable to her disability," adding that "it was incumbent upon the employer to rebut the inference of causation or prove that the reduction in employment was solely due to factors unrelated to the disability" (id. at 1472 [internal quotation marks omitted]). We now reverse.

As this Court recently noted, a central question for the Board to resolve, before awarding wage replacement benefits in a nonschedule permanent partial disability case, is "whether a claimant has maintained a sufficient attachment to the labor market" (Burns v Varriale, 9 NY3d 207, 216 [2007]; see Matter of Jordan v Decorative Co., 230 NY 522, 526-527 [1921]). By finding alternative work consistent with his or her physical limitations, or at least showing reasonable efforts at finding such work, the claimant can prove to the Board that the cause of his or her reduced income is a disability, rather than unwillingness to work again. "Claimant must demonstrate that his or her reduced earning capacity is due to the disability, not . . . factors unrelated to the disability" (Burns, 9 NY3d at 216 [internal quotation marks omitted]).

In reaching its decision on this question, the Board will, of course, consider the circumstances under which claimant originally stopped full-duty work. "If the Board determines that a workers' compensation claimant has a permanent partial disability and that the claimant retired from his or her job due to that disability, an inference that his or her reduced future earnings resulted from the disability may be drawn" (id. [emphasis added]). The same is true regardless of whether claimant has completely retired from the work force or merely withdrawn from the particular employment in which she was engaged at{**19 NY3d at 192} the time of her accident. An inference of causation may be drawn from the disability-related withdrawal, depending on the nature of the disability and the nature of the claimant's work.

In many of its decisions, the Third Department has noted, correctly, that "a claimant's work-related permanent partial disability allows an inference that a subsequent loss of wages is attributable to physical limitations" (Matter of Coyle v Intermagnetics Corp., 267 AD2d 621, 622 [3d Dept 1999] [emphasis added]; see also e.g. Matter of Mazziotto v Brookfield Constr. Co., 40 AD2d 245, 247 [3d Dept 1972]; Matter of Miller v Pan Am. World Airways, 46 AD2d 718 [3d Dept 1974]). Recently, however, the Third Department has treated the inference as required, or presumed, rather than merely permitted. For example, the court has written that "once claimant's work-related permanent partial disability has been established, an inference will arise that the subsequent loss of wages was attributable to these physical limitations" (Matter of Johnson v Onondaga Heating & A.C., 301 AD2d 903, 905 [3d Dept 2003] [internal quotation marks and brackets omitted and emphasis added]; see also e.g. Matter of Pittman v ABM Indus., Inc., 24 AD3d 1056, 1057-1058 [3d Dept 2005]; Matter of Dudlo v Polytherm Plastics, 125 AD2d 792, 793 [3d Dept 1986]).

The correct principle is the former one; the Board may, but need not, infer that the [*4]claimant cannot find a suitable job because of her disability. If, for example, the Board considers a disability to be one that prevents the claimant from pursuing the trade in which she was engaged at the time of the accident, while allowing her to undertake many other jobs that pay as well, it will likely not make the inference. The Third Department's recent doctrine that the Board must find causation "effectively created [a] . . . presumption out of an inference" (Matter of Tipping v National Surface Cleaning Mgt., Inc., 29 AD3d 1200, 1201 [3d Dept 2006, Carpinello, J., concurring]; see also 79 AD3d at 1473 [Cardona, P.J., and Garry, J., dissenting]). There is no precedent in our decisions for this theory, which would illogically constrain the ability of the Board to find facts, and would shift the burden of proof from claimant to employer. Consequently, the Appellate Division's decision below was in error.

Finally, we consider the Board's finding that, as of August 2008, Zamora had not made a reasonable search for work consistent with her physical restrictions. That determination is a factual one that an appellate court must uphold as long as there{**19 NY3d at 193} is substantial evidence to support it (see generally Matter of Capizzi v Southern Dist. Reporters, 61 NY2d 50, 54 [1984]; Matter of Axel v Duffy-Mott Co., 47 NY2d 1, 6 [1979]). We may not weigh the evidence or reject the Board's choice simply because a contrary determination would have been reasonable. Here, the evidence concerning the types of work that Zamora had attempted to find and her lack of success in those endeavors, together with the absence of evidence of attempts to find less physically taxing work, constitute relevant proof adequately supporting the Board's conclusion. Therefore, we are satisfied that there was substantial evidence to support the Board's determination.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the decision of the Workers' Compensation Board reinstated.

Chief Judge Lippman (dissenting). Nearly a century ago in Matter of Waters v Taylor Co. (218 NY 248, 251-252 [1916]), we held that what was then known as the Workmen's Compensation Act

"[wa]s framed on broad principles for the protection of the work[er]. Relief under it . . . rest[ed] on the economic and humanitarian principles that compensation should be given . . . for earning capacity destroyed by an accident in the course of or connected with [one's] work, and this not only for [the worker's] own benefit[,] but for the benefit of the state[,] which otherwise might be charged with [the worker's] support."

Because the majority's holding lacks statutory support and runs counter to the remedial purpose of the Workers' Compensation Law, I respectfully dissent.

"Attachment to the labor market" is a concept that is conspicuously absent from the Workers' Compensation Law. The majority's formulation of the issue in this case distracts from the proper identification of the question before the Court, which is whether a worker who has involuntarily withdrawn from his or her employment due to a compensable disability must demonstrate "attachment to the labor market" in order to be eligible to receive benefits. Nothing [*5]in the statute suggests that this is a prerequisite to entitlement to workers' compensation benefits.

An inference that the loss in wage earning capacity is due to the permanent partial disability (PPD) arises where the{**19 NY3d at 194} claimant left his or her job because of that disability (see Matter of Leeber v LILCO, 29 AD3d 1198, 1199 [3d Dept 2006] [holding that "if claimant's permanent partial disability caused or contributed to his decision to retire, an inference arises that his earning capacity is reduced by the disability and claimant is entitled to compensation until the inference is removed from the case"]; Matter of Tipping v National Surface Cleaning Mgt., Inc., 29 AD3d 1200, 1201 [3d Dept 2006] [holding that "the (Workers' Compensation) Board's initial determination that claimant's retirement was involuntary gave rise to an inference that his reduced earning capacity continued after retirement"]). The claimant's employer or the insurance carrier can rebut the inference by presenting "direct and positive proof that something other than the disability was the sole cause of claimant's reduced earning capacity after retirement" (Matter of Pittman v ABM Indus., Inc., 24 AD3d 1056, 1058 [3d Dept 2005]). I see no logical reason to treat the involuntary withdrawal that occurred in this case any differently from the Third Department's treatment of involuntary retirement, which is consistent with the Workers' Compensation Law's plain language and core objectives.^[FN*]

Whether a claimant suffering from a PPD has maintained an "attachment to the labor market" should only be considered where the claimant seeks total disability compensation (see e.g. Matter of Parrilla v Leemar Knitting Mills, 27 AD2d 965 [3d Dept 1967]), or where the claimant has voluntarily withdrawn from the labor market (see e.g. Matter of Peck v James Sq. Nursing Home, 34 AD3d 1033, 1034 [3d Dept 2006] [holding that the "claimant (suffering from a PPD) ha(d) an obligation to demonstrate attachment to the labor market with evidence of a search of employment within medical restrictions," where there was "no finding of involuntary retirement"]). This is consistent with the purpose of the Workers' Compensation Law, which is to compensate for the claimant's loss in wage earning capacity. It is reasonable that a claimant suffering from a PPD who has{**19 NY3d at 195} left his or her job voluntarily—that is to say, for reasons unrelated to the disability—should not benefit from the inference that the loss in wage earning capacity is due to the disability, precisely because the claimant chose to leave his or her employment and was not forced to do so by reason of the compensable disability. Indeed, Matter of Jordan v [*6]Decorative Co. (230 NY 522 [1921]), relied upon by the majority, was a case in which, unlike here, the claimant obtained a new job after leaving the job where he sustained his disability, and refused a position offered by his new employer even though he was physically able to do the work. The claimant in Jordan affirmatively refused work and voluntarily left his new position even though there was no shortage of work there that he was physically capable of doing. Nothing of the sort occurred in this case. There is no evidence tending to suggest that claimant, who suffered permanent injuries requiring spinal fusion surgery when a computer monitor fell and struck her, either affirmatively refused work that she could do or voluntarily left any job. Indeed, quite the opposite is true. Below, the Workers' Compensation Board concluded that claimant involuntarily left her job at New York Neurologic Associates (meaning that her decision to withdraw from that position was related to her PPD), and attempted to find work elsewhere but found that she suffered from certain physical limitations that prevented her from performing tasks essential to those forms of employment, such as heavy lifting.

The majority extends the rule regarding "attachment to the labor market" beyond the limits that can reasonably be imposed on the application of such a rule when considering the remedial and humanitarian roots of the critically important statute that we address today. Workers' compensation benefits are intended to do what the name implies: compensate workers for losses in wage earning capacity incurred due to work-related injuries. To impose barriers to access to those benefits, where there is no basis for such prerequisites, contravenes the law and violates basic principles of fairness for debilitated workers injured in the course of their employment. For these reasons, I respectfully dissent and would affirm the order of the Appellate Division.

Judges Graffeo, Read and Smith concur with Judge Pigott; Chief Judge Lippman dissents and votes to affirm in a separate opinion in which Judges Ciparick and Jones concur.

Order reversed, etc.