                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 21, 2016                    520603
________________________________

In the Matter of the Claim of
   EDELMIRO CRUZ,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
BUFFALO BOARD OF EDUCATION
   et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   March 21, 2016

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

                             __________


      Hamberger & Weiss, Buffalo (Renee E. Heitger of counsel),
for appellants.

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

                             __________


Clark, J.

      Appeal from a decision of the Workers' Compensation Board,
filed June 9, 2014, which ruled, among other things, that
claimant demonstrated an attachment to the labor market.

      Claimant worked as an assistant principal at an elementary
school and sustained work-related injuries on May 25, 2011. He
was awarded workers' compensation benefits, which continued until
he returned to work on August 22, 2011. His employment was
                              -2-                520603

terminated in February 2012. Claimant thereafter sought
additional causally related lost earnings and the self-insured
employer and its third-party administrator (hereinafter
collectively referred to as the employer) raised the issue of
attachment to the labor market. Following hearings, the employer
raised the issue of whether claimant had violated Workers'
Compensation Law § 114-a based upon alleged misrepresentations
regarding his search for work. A Workers' Compensation Law Judge
(hereinafter WCLJ) denied benefits, finding that, due to a lack
of a sufficient effort to find work, claimant had voluntarily
removed himself from the labor market. Further, the WCLJ found
that claimant had violated Workers' Compensation Law § 114-a and
disqualified him from further benefits. Upon review, the
Workers' Compensation Board concluded that the employer had not
submitted sufficient evidence that claimant had violated Workers'
Compensation Law § 114-a. Although the Board affirmed the WCLJ's
determination that claimant had voluntarily removed himself from
the labor market following his termination, the Board also found
that he had reattached to the labor market in February 2013.
Accordingly, the Board restored the case to the calendar to
address the issue of claimant's reduced earnings subsequent to
February 2013. The employer now appeals.

      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" (Matter of Watts v Arnot
Ogden Med. Ctr., 132 AD3d 1024, 1025 [2015]; see Matter of Cole v
Consolidated Edison Co. of N.Y., Inc., 125 AD3d 1084, 1085
[2015]; Matter of Scott v Rochester City Sch. Dist., 125 AD3d
1083, 1083-1084 [2015]). The Board's determination as to whether
a claimant has demonstrated an attachment to the labor market
will be upheld if supported by substantial evidence (see Matter
of Watts v Arnot Ogden Med. Ctr., 132 AD3d at 1025). Here,
medical evidence in the record reflects that, on account of his
injuries, claimant could only sit or stand for no more than two
hours a day and he could not lift more than 20 pounds. Claimant
testified that he began using the services of the Office of
Vocational and Educational Services for Individuals with
Disabilities (hereinafter VESID) in January 2013. Claimant also
testified that he obtained a part-time job at an auto parts store
in February 2013, albeit for only five hours a week at the time
                              -3-                520603

of his testimony. According to claimant, he was training for a
management position that offered more hours, and the store was
willing to accommodate his restrictions. Further, claimant
testified that he was still searching for other work with a VESID
job counselor. Based upon the foregoing, the Board's decision
that claimant had reattached to the labor market as of February
2013 is supported by substantial evidence.

      Regarding the employer's contention that claimant made a
material misrepresentation in violation of Workers' Compensation
Law § 114-a, the Board's determination as to this issue will not
be disturbed if supported by substantial evidence (see Matter of
Poulton v Griffin Mfg. Co., 102 AD3d 1071, 1071 [2013]; Matter of
Ridgeway v RGRTA Regional Tr. Serv., 68 AD3d 1219, 1220 [2009]).
Here, the employer relied on the report and testimony of a
vocation counselor, who contacted 34 companies by telephone with
which claimant reported that he had filed an application for
employment between February 2012 and February 2013. She could
only confirm that two of the companies had received an
application from him. She further testified, however, that 17
companies either did not respond or could not verify whether or
not they had received an application and the witness conceded
that claimant could have applied for employment with them. While
the witness testified that the remaining 15 companies told her
that they did not have an application from claimant on file, the
Board noted that she did not report the name of the individuals
she had spoken with and concluded that, although claimant had not
presented sufficient evidence to establish that he had remained
attached to the labor market during the time in question, there
was a lack of credible evidence that he had knowingly made a
false statement or misrepresented a material fact in order to
obtain benefits. Inasmuch as "the Board is vested with the
discretion to evaluate witness credibility and to weigh
conflicting evidence" (Matter of Hadzaj v Harvard Cleaning Serv.,
77 AD3d 1000, 1001 [2010], lv denied 16 NY3d 702 [2011]; see
Matter of Borgal v Rochester-Genesee Regional Transp. Auth., 108
AD3d 914, 915 [2013]), the Board's decision is supported by
substantial evidence and will not be disturbed.

     Garry, J.P., Egan Jr., Lynch and Devine, JJ., concur.
                        -4-                  520603

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
