Willis v. Auxiliary Services Corp. , 681 N.Y.S.2d 652 ( 1998 )

—Appeal from a decision of the Workers’ Compensation Board, filed September 17, 1997, which ruled that claimant was ineligible to receive workers’ compensation benefits after a certain date as she voluntarily withdrew herself from the labor market.

Prior to sustaining a compensable back injury in September 1995, claimant was employed as a cook working the second shift from approximately 2:00 p.m. or 3:00 p.m. until 10:00 p.m. or 11:30 p.m. Thereafter, the employer offered claimant a cashier position from 5:30 p.m. to 1:30 a.m. or 2:30 a.m. consistent with her light-duty restrictions. Claimant testified that she normally would have taken the position but was unable to due to child care problems resulting from her husband also working a night shift until April 1996. Claimant subsequently began attending business career classes. A representative for the employer testified that claimant was again offered the position in the spring; however, claimant failed to respond to the employment offer. Claimant challenges the decision of the Workers’ Compensation Board which ruled that there was no compensable lost time or reduced earnings from April 1, 1996 on the ground that claimant withdrew from the labor market.

We affirm. “The issue of whether a partially disabled claimant’s failure to accept light duty work constitutes a voluntary withdrawal from the labor market is a factual one, and if supported by substantial evidence the Workers’ Compensation Board’s decision on that issue cannot be disturbed” (Matter of Okonski v Pollio Dairy Prods. Corp., 184 AD2d 871, 872). Under the circumstances presented here, we find substantial evidence to support the Board’s decision that claimant, who was not physically restricted from accepting the cashier position, voluntarily withdrew from the labor market (see generally, Matter of Serwetnyk v USAIR, 249 AD2d 631; compare, Matter of Okonski v Pollio Dairy Prods. Corp., supra). Therefore, we find no reason to disturb the Board’s decision.

Cardona, P. J., Mercure, Peters, Spain and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.