                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 8, 2015                   518151
________________________________

In the Matter of REBEL WATTS,
                    Respondent,
      v

ARNOT OGDEN MEDICAL CENTER,                 MEMORANDUM AND ORDER
                    Appellant.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   September 14, 2015

Before:   Egan Jr., J.P., Rose, Devine and Clark, JJ.

                             __________


      Coughlin & Gerhart, LLP, Binghamton (Scot G. Miller of
counsel), for appellant.

      Eric T. Schneiderman, Attorney General, New York City
(Steven Segall of counsel), for Workers' Compensation Board,
respondent.

                             __________


Devine, J.

      Appeals (1) from a decision of the Workers' Compensation
Board, filed March 15, 2013, which ruled, among other things,
that claimant demonstrated an attachment to the labor market, and
(2) from two decisions of said Board, filed June 20, 2013 and
February 10, 2014, which denied two requests of the employer and
its workers' compensation carrier for reconsideration and/or full
Board review.

      Claimant, a certified nurse's assistant, established a
compensable accident, notice and causal relationship for a 2007
                              -2-                518151

cervical injury and was awarded workers' compensation benefits
for a specified period of time. Subsequently, claimant sought
additional causally-related lost earnings. By decision dated
October 26, 2010, the Workers' Compensation Board, among other
things, found that claimant sustained a temporary total
disability from October 2009 onward. The Board rejected her
claim for further benefits, however, finding that she was not
attached to the labor market from May 2009 to October 2009, and
that she would accordingly need to establish her reattachment to
the labor market in order to be entitled to further awards.
Following development of the record, the Board, by decision filed
March 15, 2013, affirmed a decision of the Workers' Compensation
Law Judge finding that claimant had sustained a permanent total
disability as of November 2009 and that she had reattached to the
labor market as of January 2011. The subsequent applications of
the employer and its workers' compensation carrier for
reconsideration and/or full Board review were denied. These
appeals ensued.1

      We affirm. A claimant must demonstrate attachment to the
labor market with evidence of a search for employment consistent
with his or her medical restrictions (see Matter of Cole v
Consolidated Edison Co. of N.Y., Inc., 125 AD3d 1084, 1085
[2015]). "By . . . 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" (Matter of Zamora v New York
Neurologic Assoc., 19 NY3d 186, 191 [2012]). "[T]he Board's
determination in that regard will be upheld if supported by
substantial evidence" (Matter of Cole v Consolidated Edison Co.
of N.Y., Inc., 125 AD3d at 1085; see Matter of Bacci v Staten Is.
Univ. Hosp., 32 AD3d 582, 583 [2006]).



    1
        The employer's appeal from the Board's June 20, 2013
decision must be dismissed as moot inasmuch as that decision was
superseded by the Board's February 10, 2014 decision (see Matter
of Bland v Gellman, Brydges & Schroff, 127 AD3d 1436, 1437
[2015], lv dismissed ___ NY3d ___ [Sept. 10, 2015]; Matter of
Winters v Advance Auto Parts, 119 AD3d 1041, 1043 n [2014]).
                              -3-                  518151

      Here, claimant testified regarding her search for
employment within her medical restrictions; however, when she
informed the prospective employer of her degree of disability,
she was told that no positions were available to accommodate her
disability. Furthermore, upon application to the Office of
Vocational and Educational Services for Individuals with
Disabilities, that agency informed claimant that she would not
benefit from its services given her medical limitations. Under
these circumstances, substantial evidence supports the finding of
the Board that claimant's efforts of actively searching for
employment within her medical restrictions and her goal of
remaining attached to the labor market were sufficient to
demonstrate her reattachment to the labor market (see Matter of
Cole v Consolidated Edison Co. of N.Y., Inc., 125 AD3d at 1085).
As such, the Board's March 2013 decision will not be disturbed.

      We have reviewed the employer's contention that the Board
erred in denying its February 10, 2014 request for full Board
review and find it to be unpersuasive.

     Egan Jr., J.P., Rose and Clark, JJ., concur.



      ORDERED that the appeal from the June 20, 2013 decision is
dismissed, as moot, without costs.

      ORDERED that the decisions filed March 15, 2013 and
February 10, 2014 are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
