Kucuk v. Hickey Freeman Co., Inc.

• Decision Date: 04 November 2010
• Citation: 78 A.D.3d 1259,909 N.Y.S.2d 831
• Parties: In the Matter of the Claim of Semsiye KUCUK, Appellant, v. HICKEY FREEMAN COMPANY, INC., et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 831

78 A.D.3d 1259

In the Matter of the Claim of Semsiye KUCUK, Appellant,

v. HICKEY FREEMAN COMPANY, INC., et al., Respondents.Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 4, 2010.

Michael A. Sypniewski, Rochester, for appellant.

Buckner & Kourofsky, Rochester (Jacklyn M. Penna of counsel), for Hickey Freeman Company, Inc. and another, respondents.

Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer of counsel), for Special Funds Conservation Committee, respondent.

Before: PETERS, J.P., ROSE, LAHTINEN, McCARTHY and GARRY, JJ.

PETERS, J.P.

Appeal from a decision of the Workers' Compensation Board, filed January 27, 2009, which, among other things, ruled that claimant did not sustain a total industrial disability.

Claimant, a seamstress, immigrated from Turkey in 1979 and began working for the employer. Her job involved repetitive handwork, including knitting collars, sewing, cutting fabric and using a sewing machine. In 1990, she sustained injuries to her right thumb and wrist in the course of her employment and received workers' compensation benefits. Claimant missed a few weeks of work as a result of her injuries but, following her return, continued with the repetitive handwork despite ongoingproblems with her hands, wrists, thumbs and elbows, as well as pain in her arms and shoulders. In 2004, she sustained work-related injuries to her right arm and shoulder and stopped working upon the recommendation of her orthopedic surgeon. Her claim for workers' compensation benefits was established with respect to this injury and she was awarded benefits through November 6, 2004, and liability for the 1990 claim was transferred to the Special Fund for Reopened Cases ( see Workers' Compensation Law § 25-a).

Thereafter, various hearings were conducted wherein extensive medical testimony was presented regarding claimant's level of disability and her abilities. During the course of the proceedings, video surveillance was taken of claimant on six separate days between September 2005 and February 2006. After viewing the surveillance footage, each of the three examining physicians testified and/or issued amendments to their medical reports downgrading their opinions of claimant's disability.

In December 2007, the Workers' Compensation Board found that claimant had a causally related disability of a mild to moderate degree and amended her 2004 claim to include certain other conditions, but held awards in abeyance pending a determination on the issue of voluntary withdrawal from the labor market. It also directed further development of the record on the issues of, among other things, permanency and total industrial disability. Following a hearing wherein claimant testified, a Workers' Compensation Law Judge (hereinafter WCLJ) found that claimant suffered a permanent partial disability, but was not entitled to further benefits because she did not maintain an attachment to the labor market. In a decision filed in January 2009, the Board affirmed the WCLJ's determination, finding that claimant does not have a total industrial disability and that she voluntarily withdrew from the labor market by failing to search for work within her medical restrictions. The Board subsequently issued an amended decision, resulting in the same conclusion, and denied claimant's application for full Board review. Claimant now appeals.¹

Substantial evidence supports the Board's determination that claimant does not have a total industrial disability. "A claimantwho suffers from a permanent partial disability may be classified as totally industrially disabled if the limitations imposed by the compensable injury, coupled with factors such as a limited educational background and work history, render him or her incapable of gainful employment" ( Matter of Wooding v. Nestle USA, Inc., 75 A.D.3d 1043, 1043, 906 N.Y.S.2d 185 [2010] [citation omitted]; see Matter of Newman v. Xerox Corp., 48 A.D.3d 843, 843, 850 N.Y.S.2d 711 [2008] ). Whether a total industrial disability exists presents a question of fact for the Board to resolve and its determination will be upheld if supported by substantial evidence ( see Matter of Sacco v. Mast Adv./Publ., 71 A.D.3d 1304, 1305, 896 N.Y.S.2d 524 [2010]; Matter of Barsuk v. Joseph Barsuk, Inc., 24 A.D.3d 1118, 1118, 807 N.Y.S.2d 195 [2005], appeal dismissed 6 N.Y.3d 891, 817 N.Y.S.2d 625, 850 N.E.2d 672 [2006], lv. denied 7 N.Y.3d 708, 822 N.Y.S.2d 482, 855 N.E.2d 798 [2006] ).

Here, after viewing the video surveillance footage, two of claimant's examining doctors opined that, while claimant was unable to return to her previous job with the employer or perform the type of repetitive work that she did while working there, she was capable of performing light, nonrepetitive work with a five-pound weight restriction. The physician who examined claimant on behalf of the Board agreed that claimant's disability prevented her from doing work that involved repetitive movements, but otherwise listedclaimant's work restrictions as heavy pushing or pulling and lifting more than 40 pounds. While Jennifer Dizon, the rehabilitation counselor who evaluated claimant on behalf of the Board, opined that claimant was not a viable candidate for job retraining, the Board is entitled to reject an opinion as incredible where, as here, the assumptions forming the basis of that opinion lack evidentiary support in the record ( see generally Matter of Albert v. Miracle Makers of Bedford Stuyvesant HFDC, Inc., 13 A.D.3d 925, 926, 786 N.Y.S.2d 655 [2004]; Matter of Musa v. Nassau County Police Dept., 276 A.D.2d 851, 852, 714 N.Y.S.2d 545 [2000]; Matter of Freitag v. New York Times, 260 A.D.2d 748, 749, 687 N.Y.S.2d 809 [1999] ). Dizon's opinion was based, in part, upon the finding of one of claimant's examining physicians that claimant had a total disability, but the Board had previously rejected that finding and, more significantly, the physician had changed his opinion following his review of the video surveillance of claimant. Furthermore, as noted by the Board, Dizon's finding that claimant "cannot hold grocery bags or even a gallon of milk" was utterly belied by the video surveillance-which Dizon did not review-showing claimant performing these tasks, as well as various other activities involving her upper extremities. Although claimant has a limited ability to speak English and has been a seamstress for over 25 years, the record reveals that she failed to participate in free English classes provided by the employer and was resistant to job retraining, raising the inferencethat claimant was unwilling to perform other work as opposed to being unable to do so ( see Matter of Mastan v. Nashua Tape Prods., 219 A.D.2d 766, 767, 631 N.Y.S.2d 446 [1995] ). Thus, we find the Board's determination that claimant was not totally industrially disabled to be supported by substantial evidence ( see Matter of Wooding v. Nestle USA, Inc., 75 A.D.3d at 1044, 906 N.Y.S.2d 185; Matter of Gaff v. North Star Trucking, 242 A.D.2d 758, 758, 661 N.Y.S.2d 852 [1997], lv. denied 91 N.Y.2d 803, 668 N.Y.S.2d 558, 691 N.E.2d 630 [1997]; Matter of Mastan v. Nashua Tape Prods., 219 A.D.2d at 766, 631 N.Y.S.2d 446).

We next address the Board's finding that claimant's withdrawal from the labor market was voluntary. "An award of compensation is improper if the sole cause for a claimant's loss of earnings is his or her voluntary withdrawal from the labor market" ( Matter of Louman v. Premier Staffing, LLC, 12 A.D.3d 815, 815, 784 N.Y.S.2d 246 [2004] [internal quotation marks and citation omitted]; see Matter of Yamonaco v. Union Carbide Corp., 42 A.D.2d 1014, 1014, 348 N.Y.S.2d 196 [1973]; see also Burns v. Varriale, 34 A.D.3d 59, 63, 820 N.Y.S.2d 655 [2006], affd. 9 N.Y.3d 207, 849 N.Y.S.2d 1, 879 N.E.2d 140 [2007] ). Whether a claimant has voluntarily withdrawn from the labor market is a factual question for the Board to resolve and its determination will not be disturbed if supported by substantial evidence ( see Matter of Mills v. J.C. Penney, 59 A.D.3d 755, 756, 872 N.Y.S.2d 601 [2009]; Matter of Sanchez v. Consolidated Edison Co. of N.Y., Inc., 40 A.D.3d 1153, 1154, 834 N.Y.S.2d 584 [2007] ). To that end, "the Board is vested with broad authority to decide factual issues based upon the credibility of witnesses and to draw reasonable inferences therefrom" ( Matter of Mills v. J.C. Penney, 59 A.D.3d at...