                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 12, 2015                     519180
________________________________

In the Matter of the Claim of
   BIENVENIDO APONTE,
                    Appellant,
      v

NBTY, INC., et al.,                          MEMORANDUM AND ORDER
                      Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:    January 14, 2015

Before:    Peters, P.J., McCarthy, Garry and Rose, JJ.

                              __________


      Turley Redmon Rosasco LLP, Ronkonkoma (John F. Clennan of
counsel), for appellant.

      Vecchione, Vecchione & Connors, LLP, Garden City Park
(Heather N. Babits of counsel), for NBTY, Inc. and another,
respondents.

                              __________


Rose, J.

      Appeal from a decision of the Workers' Compensation Board,
filed October 23, 2013, which ruled that claimant voluntarily
removed himself from the labor market.

      Claimant was injured in March 2009 when a coworker
assaulted him, and his case was established for an injury to the
neck, back and knee. Claimant stopped working and, in 2010, the
Workers' Compensation Board determined that he had voluntarily
removed himself from the labor market. In February 2011,
                              -2-                519180

claimant first found work with a pharmaceutical company and then
as a security guard until his contract expired in August 2011.
Claimant did not work thereafter and had surgery on his neck and
back in December 2011 and May 2012, respectively. Following the
2011 surgery, claimant was found to have a marked partial
disability but, after the 2012 surgery, his pain was
significantly improved and he was found to have a moderate
partial disability. The Board ultimately concluded that claimant
failed to show attachment to the labor market and, thus, that he
was not entitled to an award for lost time after August 2011.
Claimant appeals and we affirm.

      "[B]efore awarding wage replacement benefits in a
nonschedule permanent partial disability case," the Board is
required to determine "whether a claimant has maintained a
sufficient attachment to the labor market" (Matter of Zamora v
New York Neurologic Assoc., 19 NY3d 186, 191 [2012] [internal
quotation marks and citations omitted]). That is, the Board must
determine whether a claimant's "reduced earning capacity is due
to the disability, not . . . factors unrelated to the disability"
(id.) [internal quotation marks and citation omitted]). Here,
claimant testified that he stopped working in August 2011 because
his contract as a security guard ended, a factor unrelated to his
disability. Claimant stated that he made no subsequent attempt
to search for employment within medical restrictions because he
was awaiting surgery, but admitted that his doctors did not
suggest surgery to him until approximately three months after he
ceased working, and that they had not told him that he could not
work. Although he had submitted applications to "[w]ork
agencies" prior to the time that he ceased working, claimant
admitted that he did not prepare a resume or contact the
Department of Labor to obtain rehabilitation services after
August 2011. Under these circumstances, we are constrained to
find that substantial evidence supports the Board's
determinations that claimant's separation from the labor market
was voluntary and that he failed to demonstrate that his
reduction in earnings was causally related to his disability (see
Matter of Launer v Euro Brokers, 115 AD3d 1130, 1131-1132 [2014],
lv denied 23 NY3d 906 [2014]; Matter of Bobbitt v Peter
Charbonneau Constr., 85 AD3d 1351, 1351-1352 [2011]; see also
Matter of Winters v Advance Auto Parts, 119 AD3d 1041, 1042-1043
                             -3-                  519180

[2014]).

     Peters, P.J., McCarthy and Garry, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                            ENTER:




                            Robert D. Mayberger
                            Clerk of the Court
