                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: August 25, 2016                   519412
________________________________

In the Matter of CLOVIS
   WALKER,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
DARCON CONSTRUCTION CO. et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   August 18, 2016

Before:   Garry, J.P., Egan Jr., Devine, Mulvey and Aarons, JJ.

                             __________


     Joel M. Gluck, New York City, for appellant.

      Weiss, Wexler & Warnow PC, New York City (J. Evan Perigoe
of counsel), for Darcon Construction Co. and another,
respondents.

                             __________


Aarons, J.

      Appeals (1) from a decision of the Workers' Compensation
Board, filed August 26, 2013, which ruled, among other things,
that claimant did not have a total industrial disability, and (2)
from a decision of said Board, filed February 20, 2014, which
denied claimant's request for reconsideration and/or full Board
review.

      In December 2008, claimant sustained work-related injuries
to his neck and back and was awarded workers' compensation
benefits. Claimant thereafter sought a finding of a total
                              -2-                519412

permanent disability or a total industrial disability, and the
employer and its workers' compensation carrier opposed and
challenged claimant's attachment to the labor market. Following
a hearing, a Workers' Compensation Law Judge (hereinafter WCLJ)
found that claimant did not have a total industrial disability.
Further, although it was determined that claimant did have a
work-related permanent partial disability, further benefits were
denied based upon a finding that he did not maintain an
attachment to the labor market. Upon review, the Workers'
Compensation Board affirmed. Claimant's subsequent request for
reconsideration and/or full Board review was denied and these
appeals ensued.1

      Claimant does not contest the finding of a permanent
partial disability, but argues that the Board erred in finding
that he did not maintain an attachment to the labor market.
"Where a claimant has a permanent partial disability but there
has been no finding of involuntary retirement, the claimant has
an obligation to demonstrate attachment to the labor market with
evidence of a search for employment within medical restrictions"
(Matter of Peck v James Sq. Nursing Home, 34 AD3d 1033, 1034
[2006]; see Matter of Wooding v Nestle USA, Inc., 75 AD3d 1043,
1043 [2010]). Such a determination "is an issue of fact for the
Board to resolve, and its resolution of that issue will not be
disturbed if supported by substantial evidence in the record"
(Matter of German v Target Corp., 77 AD3d 1126, 1126 [2010]; see
Matter of Smith v TWA, 90 AD3d 1171, 1172 [2011]).

      Claimant, who was 60 years old at the time of the injuries,
testified that he contacted the Department of Labor in 2011 and


    1
        Contrary to the contention of the employer and its
workers' compensation carrier, claimant's perfection of the
appeal of the Board's August 2013 decision was timely (see Rules
of App Div, 3rd Dept [22 NYCRR] § 800.12). However, inasmuch as
claimant advances no arguments in his brief regarding the Board's
February 2014 denial of reconsideration and/or full Board review,
we deem his appeal from that decision to be abandoned (see Matter
of Siennikov v Professional Grade Constr., Inc., 137 AD3d 1440,
1441 n 1 [2016]).
                              -3-                519412

was referred to the Urban League's Mature Worker Program, which
provides training to individuals age 55 and older to prepare them
for the job market. He further testified that he was advised
that he was accepted into the program, but that there was a lack
of funding and, at the time of his testimony, the Urban League
was waiting for a grant before his training could begin.
Claimant admittedly made no other efforts to find employment, and
there is nothing in the record indicating that he pursued any
other vocational services. Although the Board has found that a
claimant remains attached to the labor market when it is shown
that he or she is actively participating in a job location
service or a Board-approved vocational rehabilitation (see Matter
of Winters v Advance Auto Parts, 119 AD3d 1041, 1042-1043 [2014];
Employer: Classic Bindery Inc., 2011 WL 3612749, *2, 2011 NY Wrk
Comp LEXIS 3997, *5-6 [WCB No. G021 5031, July 27, 2011]), we
find that the Board's determination here – that by relying solely
on an unfunded training program, claimant was not actively
participating in vocational rehabilitation and had voluntarily
removed himself from the labor market – is supported by
substantial evidence and will not be disturbed (see Matter of
Kucuk v Hickey Freeman Co., 78 AD3d 1259, 1262-1263 [2010]).

      Regarding the Board's determination that claimant does not
have a total industrial disability, "[a] claimant who has a
permanent partial disability may nonetheless be classified as
totally industrially disabled where the limitations imposed by
the work-related disability, coupled with other factors, such as
limited educational background and work history, render the
claimant incapable of gainful employment" (Matter of Barsuk v
Joseph Barsuk, Inc., 24 AD3d 1118, 1118 [2005], lv dismissed 6
NY3d 891 [2006], lv denied 7 NY3d 708 [2006]; accord Matter of
Rose v Roundpoint Constr., 124 AD3d 1033, 1034 [2015]). While
the Board's determination regarding a total industrial disability
will be upheld if supported by substantial evidence (see Matter
of Brady v Northeast Riggers & Erectors, 132 AD3d 1226, 1227
[2015]), "Workers' Compensation Law § 23 requires the Board to
include in its decision a statement of facts which formed the
basis of its action on the issues raised" (Matter of Engle v
Reale Constr. Co., 1 AD3d 693, 694 [2003] [internal quotation
marks omitted]).
                              -4-                519412

      Here, the WCLJ found a lack of total industrial disability
based solely upon claimant's failure to seek employment after his
accident, with no discussion of the relevant factors relating to
a total industrial disability. The Board found that the WCLJ
inappropriately relied on the lack of a job search in making the
finding, but concluded that the WCLJ's ultimate decision denying
a total industrial disability was correct. In support, the Board
stated that claimant had not demonstrated that his disability,
combined with the relevant factors, rendered him incapable of
employment, without any discussion of the factors or any
reference to the factual findings that formed the basis of the
determination. The Board further concluded that "the medical
evidence shows that claimant is functionally capable of work."
Again, there is no reference to any factual findings regarding
the medical evidence as it relates to a total industrial
disability in either the WCLJ's decision or the Board's decision.
We also note that, in its decision, the Board refers to certain
physicians and their opinions regarding a schedule loss of use of
the right shoulder. Although it is unclear whether the Board
relied on these opinions in reaching its decision, they are not
in the record and do not seem to apply to claimant's case. In
light of the foregoing, we find a lack of a factual basis for the
Board's decision regarding the issue of a total industrial
disability and, therefore, the matter must be remitted to the
Board for further proceedings (see id.).

     Garry, J.P., Egan Jr., Devine and Mulvey, JJ., concur.



      ORDERED that the decision filed August 26, 2013 is
modified, without costs, by reversing so much thereof as
determined that claimant does not have a total industrial
disability; matter remitted to the Workers' Compensation Board
for further proceedings not inconsistent with this Court's
decision; and, as so modified, affirmed.
                              -5-                  519412

      ORDERED that the decision filed February 20, 2014 is
affirmed, without costs.



                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
