Third Department Decisions 3-26-15

Today the Court decided 10 cases dealing with workers’ compensation issues.

Matter of Demperio, the carrier appealed  from a decision of the Workers’ Compensation Board, filed March 6, 2013, which, among other things, ruled that claimant sustained a compensable injury. Claimant worked as a secretary at a medical facility, and she filed for workers’ compensation benefits alleging that she sustained work-related mental injuries after she responded to the suicide of a patient in 2006. Following hearings, a Workers’ Compensation Law Judge established the claim and found, as is relevant here, that claimant had disabling depression, anxiety and posttraumatic stress disorder stemming from that incident. The Workers’ Compensation Board affirmed, and the self-insured employer and its third-party administrator (hereinafter collectively referred to as the employer) now appeal.   The Court affirmed, noting  Psychological injuries caused by witnessing the aftermath of a suicide have been held to be compensable where “the claimant was an active participant in the tragedy,” as opposed to a bystander (Matter of Wolfe v Sibley, Lindsay & Curr Co., 36 NY2d 505, 511 [1975]; see Matter of Wood v Laidlaw Tr., 77 NY2d 79, 83 [1990]; Matter of Everett v A.S. Steel Rule Die Corp., 106 AD2d 181, 183 [1985], affd for reasons stated below 66 NY2d 683 [1985]). The facts here are not in significant dispute. On March 31, 2006, a patient leapt from a window at the facility where claimant worked and impaled himself on picnic tables outside of claimant’s office. Claimant was one of the first workers to reach the scene and, despite her lack of medical training, was directed by her supervisor to retrieve an oxygen tank for the patient. Claimant did so, but began to feel anxious and hyperventilate and “lost it” altogether after she was ordered by facility officials not to speak to investigators about her prior interactions with the patient. Therefore, substantial evidence exists for the Board’s finding that claimant was indeed an active participant in the events surrounding the suicide (see Matter of Wolfe v Sibley, Lindsay & Curr Co., 36 NY2d at 510-511; see also Matter of Wood v Laidlaw Tr., 77 NY2d at 84; Matter of Wyman v Maidas Floral Shop, 1 AD3d 728, 729 [2003]). The Board was further free to, and did, credit medical evidence indicating that claimant developed disabling depression, anxiety and posttraumatic stress disorder as a result of the incident (see Matter of Malerba v Ameron Global, Inc., 117 AD3d 1302, 1303 [2014]). We have examined the employer’s remaining contention and found it to be lacking in merit.

In Matter of Wormley, the carrier appealed a finding that the claimant had causally related loss of earnings.   Claimant, a teaching assistant, injured her lower back when she slipped and fell at her job in September 2008, and she has not returned to work. She successfully applied for workers’ compensation benefits and was eventually classified as having sustained a marked permanent partial disability. In January 2013, a Workers’ Compensation Law Judge issued a decision finding that, among other things, claimant had sustained an 80% loss of wage earning capacity. The Workers’ Compensation Board affirmed, and the self-insured employer and its third-party administrator (hereinafter collectively referred to as the employer) now appeal.   The Court affirmed. In order to fix the duration of benefits in a permanent partial disability case that is not amenable to a schedule award, the Board is obliged to determine a claimant’s “loss of wage-earning capacity” (Workers’ Compensation Law § 15 [3] [w]; see Matter of Canales v Pinnacle Foods Group LLC, 117 AD3d 1271, 1273 [2014]). The Board relies upon various factors in making that determination, “including ‘the nature and degree of the work-related permanent physical and/or mental impairment, work restrictions, [and] claimant’s age’” (Matter of Cameron v Crooked Lake House, 106 AD3d 1416, 1416 [2013], lv denied 22 NY3d 852 [2013], quoting Employer: Buffalo Auto Recovery Svd, 2009 WL 5177881, *10, 2009 NY Wrk Comp LEXIS 15501, *27 [WCB No. 8070 3905, Nov. 12, 2009]; see Matter of Canales v Pinnacle Foods Group LLC, 117 AD3d at 1273). Here, while there was dispute as to how to categorize claimant’s disability for workers’ compensation purposes, there is little question that her back injury prevents her from prolonged sitting, walking, bending or lifting more than 10 pounds. Claimant further takes several strong pain medications that leave her unable to concentrate, cause memory loss, dizziness and blurred vision, and prevent her from driving or operating any heavy machinery. The record also reflects that claimant faces numerous challenges to finding employment, including that she is in her 50s, lacks a high school diploma, has “middle school” level reading and math skills, and lacks experience in fields where one with her educational background could likely find employment. Thus, deferring to the Board’s assessment of credibility, substantial evidence supports its determination that claimant has lost 80% of her wage-earning capacity (see Matter of Cameron v Crooked Lake House, 106 AD3d at 1416).

Matter of Williams, the carrier appealed a finding that the claimant had a permanent total disability.   Claimant, a driver, suffered injuries to his right knee and back while making a delivery in 2009. His claim for workers’ compensation benefits was established, and was later amended to include consequential adjustment disorder. The Workers’ Compensation Board ultimately found that claimant had sustained a permanent total disability from May 2012 onward. The employer, workers’ compensation carrier and policy administrator (hereinafter collectively referred to as the employer) now appeal.   We affirm. The Board properly rejected the employer’s argument that further proof was needed as to claimant’s vocational and functional capacity. That evidence is used to “determin[e] ‘loss of wage-earning capacity’ for the purpose of setting the duration of a claimant’s permanent partial disability benefits” (Matter of Canales v Pinnacle Foods Group LLC, 117 AD3d 1271, 1272 [2014], quoting Workers’ Compensation Law § 15 [3] [w]; see Workers’ Compensation Law § 15 [5-a]). In contrast, a permanent total disability is established where the medical proof shows that a claimant “is totally disabled and unable to engage in any gainful employment” (Matter of VanDermark v Frontier Ins. Co., 60 AD3d 1171, 1172 [2009]; see Workers’ Compensation Law § 15 [1]). The duration of benefits is not at issue in the permanent total disability context for the simple reason that “there is no expectation that [a claimant found to have such a disability] will rejoin the work force,” and benefits continue for the remainder of his or her life (Burns v Varriale, 9 NY3d 207, 215 [2007]). There is, accordingly, no need for extensive evidence of a claimant’s vocational and functional capacity when the medical proof demonstrates that he or she has a permanent total disability. Inasmuch as the opinions of orthopedists who have treated and conducted an independent medical examination of claimant constitute substantial evidence to support the finding that claimant has such a disability, we perceive no reason to disturb the Board’s determination (see Matter of Malerba v Ameron  Global, Inc., 117 AD3d 1302, 1302-1303 [2014]; Matter of VanDermark v Frontier Ins. Co., 60 AD3d at 1172).

Matter of Wilson, Appeal from a decision of the Workers’ Compensation Board, filed June 28, 2013, which ruled that claimant sustained an accidental injury and awarded workers’ compensation benefits.   Claimant began working for the employer in 2008. She stopped working in 2010 and filed a claim for workers’ compensation benefits alleging that she developed breathing problems due to exposure to environmental irritants at her workplace. The Workers’ Compensation Board ultimately ruled, after a mandatory full Board review, that claimant had sustained an accidental injury and established the claim. The employer and its workers’ compensation carrier (hereinafter collectively referred to as the employer) now appeal. The Court affirmed. “To establish an accidental work-related condition, claimant was required to demonstrate by competent medical evidence that her condition resulted from unusual environmental conditions or events assignable to something extraordinary at her workplace” (Matter of Adams v Univera Health Care/Excellus, 26 AD3d 587, 588 [2006] [internal quotation marks and citations omitted]; see Matter of Mazayoff v A.C.V.L. Cos., Inc., 53 AD3d 890, 891 [2008]). Claimant presented the report and testimony of her treating allergist who opined that claimant suffers from causally-related chronic hypersentivity pneumonitis that can develop from exposure to moldy hay or contaminants from air conditioning vents. Claimant testified that she never had any respiratory problems prior to 2008, and the record reflects that claimant worked in a building that was 60 yards away from horse barns on the employer’s property. The record also reflects that claimant and other employees had periodically complained about black particles that came out of the air conditioning vent. In contrast, the employer’s medical expert opined that claimant suffers from centrilobular emphysema caused by smoking, although he acknowledged that claimant’s serology was positive for exposure to antigens that cause hypersensitivity pneumonitis. Further, the employer’s expert noted that claimant, who was 43 years old at the time she stopped working, tested negative for alpha-1 antitrypsin deficiency, a genetic disorder that can cause premature emphysema. “According proper deference to the Board’s resolution of conflicting medical evidence and evaluation. Of witness credibility, we find the Board’s conclusion to be supported by substantial evidence and decline to disturb it” (Matter of Duncan v John Wiley & Sons, Inc., 54 AD3d 1124, 1126 [2008] [citations omitted]; see Matter of Sandell v Frito Lay,Inc., 112 AD3d 1242, 1244 [2013]).

Matter of Madigan, Appeal from a decision of the Workers’ Compensation Board, filed September 4, 2013, which ruled that claimant’s prescriptions for pain medications should remain undisturbed.   In 1994, claimant suffered a low back injury during the course of his employment as a machinist and was awarded workers’ compensation benefits. The workers’ compensation carrier was discharged in 2003, and liability transferred to the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law § 25-a. Claimant had a lumbar laminectomy and discectomy and, due to the poor results of that surgery, he has been on pain medication, including oxycontin, since at least 2007. After the Special Fund’s consultant, Ajendra Sohal, concluded that claimant’s doses of oxycontin had escalated without functional gains, the Special Fund requested a hearing to address the necessity of claimant’s medication usage.   In his February 2013 deposition testimony, Sohal acknowledged that the Workers’ Compensation Board had not yet adopted Medical Treatment Guidelines for chronic pain (see generally Matter of Kigin v State of N.Y. Workers’ Compensation Bd., 24 NY3d 459, 463 [2014]). A Workers’ Compensation Law Judge concluded that the prescribed drugs should be continued and the Special Fund should be liable for their cost until either the Board issued Medical Treatment Guidelines regarding long-term narcotic use or claimant’s treating physician recommended that he should be weaned off the pain medication. The Board affirmed, noting that its nonacute pain Medical Treatment Guidelines were still only in draft form, and that continued authorization for claimant’s pain medication was consistent with the Board’s interim guidance. The Special Fund now appeals.   The Court affirmed. The Special Fund’s argument that the Board did not follow the relevant Medical Treatment Guidelines lacks merit. Although those guidelines have since been adopted (12 NYCRR 324.2 [a] [6]), they were not yet in existence at the time that the ( We note that the Board subsequently amended its original decision.) Board rendered its decision. Inasmuch as the original and amended decisions are not materially different and there is no claim of prejudice, we will treat this appeal as having been taken from the amended decision (see Matter of Toledo v Administration for Children Servs., 112 AD3d 1209, 1210 n [2013]; cf. Matter of West v Titan Express, Inc., 115 AD3d 1045, 1046 [2014]).   Inasmuch as the Board’s decision to maintain the status quo until the guidelines became effective was consistent with its interim guidance regarding the appropriate medical care of those who are prescribed narcotic medication, we cannot say that the determination was irrational (see Matter of Kigin v State of N.Y. Workers’ Compensation Bd., 24 NY3d at 467-468).

Matter of Leitsky, Appeal from a decision of the Workers’ Compensation Board, filed June 12, 2013, which ruled that claimant was entitled to a schedule loss of use award and that apportionment applied to that award.   Claimant suffered a work-related injury to his right shoulder while lifting a stove in November 2009 and was awarded workers’ compensation benefits. X rays and an MRI showed, among other things, a severe degenerative glenohumeral joint due to arthritis, and he had shoulder surgery in January 2011. At a hearing on the issues of schedule loss of use (hereinafter SLU) and apportionment at which claimant testified, the workers’ compensation carrier’s consultant, Edwin Mohler, and claimant’s treating surgeon, Shankar Das, agreed that claimant had an SLU of his right shoulder of between 60% and 65%. Mohler, who the Workers’ Compensation Board credited, concluded that claimant had a 60% SLU of which 10% is attributable to the 2009 injury, which he conceded aggravated claimant’s degenerative condition; he attributed the remainder of the SLU primarily to claimant’s progressive degenerative arthritis and, to a lesser extent that he did not quantify, to a 1981 work-related shoulder injury sustained while claimant was a police officer. A Workers’ Compensation Law Judge determined that the SLU award should be apportioned 10% to the 2009 injury and the remainder to his preexisting conditions. The Board upheld that determination, and claimant appeals contending that his award should not have been apportioned.   The parties do not dispute that where, as here, “there is no continuing need for medical treatment and the medical condition is essentially stable, [an SLU] award is appropriate” (Matter of Kondylis v Alatis Interiors Co., Ltd., 116 AD3d 1184, 1186 [2014] [internal quotation marks and citation omitted]). Further, while apportionment of a workers’ compensation award presents a factual issue for the Board to resolve, its decision will be upheld only where it is supported by substantial evidence (see Matter of Morin v Town of Lake Luzerne, 100 AD3d 1197, 1197 [2012], lv denied 21 NY3d 865 [2013]). Importantly, “[h]owever, apportionment is inapplicable as a matter of law when the preexisting condition was not due to a compensable injury and the claimant was fully employed and capable of effectively performing his or her job duties notwithstanding the preexisting condition” (id. at 1198 [citations omitted]).   Here, the evidence established that after claimant’s 1981 injury, a “severe sprain” to his right shoulder, he returned to work as a police officer with no SLU or permanency and thereafter changed careers for personal reasons; he worked for stove suppliers for over 20 years with no restrictions on his work duties and did not again seek medical treatment for his shoulder until the 2009 work injury. While there was some evidence that claimant’s shoulder was symptomatic over the years, a fact on which the Board relied, the degenerative condition was not attributed to either work-related injury and claimant remained fully employed. Under settled precedent, “the dispositive issue [for apportionment] is not whether a claimant’s preexisting condition was symptomatic but, rather, whether such condition was disabling” (Matter of Bruno v Kelly Temp. Serv., 301 AD2d 730, 731 [2003]). That is, apportionment applies to claimant’s degenerative condition only if it “constitutes a disability in a compensation sense” (id. [internal quotation marks and citations omitted]; see Matter of Hroncich v Con Edison, 21 NY3d 636, 644 n 8 [2013]), because “degeneration and infirmities . . . which have not previously produced disability are not a proper basis for reduction of compensation” (Matter of Hogan v Hilltop Manor of Niskayuna, 303 AD2d 822, 823 [2003] [internal quotation marks and citation omitted]).   In applying apportionment here, the Board incorrectly relied upon the fact that claimant’s degenerative condition was symptomatic over the years prior to the 2009 injury notwithstanding the uncontroverted evidence that it was not disabling in a compensation sense in that he was fully employed and able to effectively perform his duties despite that condition (see Matter of Morin v Town of Lake Luzerne, 100 AD3d at 1198; Matter of Wilcox v Niagara Mohawk Power Corp., 69 AD3d 1264, 1265 [2010]; Matter of Hogan v Hilltop Manor of Niskayuna, 303 AD2d at 823). Accordingly, since there is no evidence of an apportionable disability before the 2009 injury, apportionment of claimant’s award was inappropriate and not supported by substantial record evidence, and he is entitled to an award for the full 60% SLU for that injury. ORDERED that the decision is reversed, with costs, and matter remitted to the Workers’ Compensation Board for further proceedings not inconsistent with this Court’s decision.

Matter of Burns, Appeal from a decision of an Arbitration Panel (pursuant to Workers’ Compensation Law § 20 [2] [d]), filed July 19, 2013, which established claimant’s average weekly wage.   Claimant applied for workers’ compensation benefits as the result of injuries he sustained in an automobile accident. Inasmuch as he worked for the Workers’ Compensation Board, the claim was addressed within the “neutral outside arbitration process” provided for by Workers’ Compensation Law § 20 (2) (a).   An arbitrator established the claim for various work-related injuries, determined claimant’s average weekly wage under Workers’ Compensation Law § 14 (1), and awarded benefits. Claimant nevertheless sought administrative review, arguing that he had been promoted to a new position shortly before he was injured and that his average weekly wage should have been calculated under Workers’ Compensation Law § 14 (2). An arbitration panel declined to address that argument because it had not been raised before the arbitrator, and claimant now appeals.   The Court affirmed.  The powers of the arbitration panel are identical to those of the Board and, as such, it could decline to review “any issues . . . that were not raised before the” arbitrator (12 NYCRR 300.13 [e] [1] [iii]; see Workers’ Compensation Law § 20 [2] [e]). Claimant did not attack the statement of earnings provided to the arbitrator by the Board, and that statement did not indicate that any issue existed with regard to the calculation of his average weekly wage. Thus, “claimant failed to provide notice [to the arbitrator] that this issue was in dispute,” and the arbitration panel properly declined to address it (Matter of Joyce v United Food & Commercial Workers Local 342-50, 307 AD2d 552, 554 [2003]; see 12 NYCRR 300.13 [e] [1] [iii]; Matter of Brzezinski v Gambino, 100 AD3d 1192, 1193 [2012]

Matter of Dudek , Appeal from a decision of the Workers’ Compensation Board, filed August 6, 2013, which ruled, among other things, that claimant’s claim could not be reopened pursuant to Workers’ Compensation Law § 123.   In February 1986, claimant sustained a work-related injury to his right knee. Claimant underwent knee surgery a few months later and, despite the fact that an award of workers’ compensation benefits had not been made, the workers’ compensation carrier for his employer paid him compensation from August 1986 to October 1986. Claimant was cleared to return to work on October 13, 1986, and no further compensation was paid.   Claimant reinjured his knee in 2001 and successfully applied for workers’ compensation benefits, although his physicians did not draw any link between his knee condition and the 1986 injury. Claimant was advised that he would need a knee replacement, however, and he underwent that surgery in 2011. An independent medical examination found that the knee replacement surgery was 60% attributable to the 1986 injury and 40% attributable to the 2001 injury. The employer and its carrier (hereinafter collectively referred to as the employer) responded by arguing that liability for the 1986 claim should be shifted to the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law § 25-a and that Workers’ Compensation Law § 123 barred any further payment of benefits. A Workers’ Compensation Law Judge conducted a hearing on the matter and agreed with the employer on both counts. The Workers’ Compensation Board affirmed, and claimant now appeals.   The Court affirmed. “Pursuant to Workers’ Compensation Law § 25–a, the transfer of liability for a claim is appropriate when an application to reopen a closed case is made more than seven years from the date of injury and more than three years after the last payment of compensation” (Matter of Thurston v Consolidated Edison Co. of N.Y., Inc., 115 AD3d 1143, 1144 [2014] [internal quotation marks and citations omitted]; see Matter of Khomitch v Crotched Mtn. Community, 120 AD3d 1459, 1461 [2014]). While “[p]ayments that are made voluntarily, and in recognition of the employer’s liability, are considered advance compensation and will prevent the transfer of liability to the Special Fund,” no such payments have been made here since claimant was cleared to return to work in October 1986 (Matter of Thurston v Consolidated Edison Co. of N.Y., Inc., 115 AD3d at 1144). Claimant points out that, around the time that he returned to work in 1986, a physician advised him to “follow up” in some manner to ensure that he would receive benefits if his knee became symptomatic. There is no indication that claimant did so or that any further Board proceedings were contemplated, however, and the physician’s vague instruction cannot be read as “display[ing] a clear intention . . . to reopen the case” (Matter of Gregorec v Brenners Furniture Co., Inc., 68 AD3d 1301, 1303 [2009]; see Matter of Mucci v New York State Dept. of Corr., 98 AD3d 1223, 1224 [2012]; Matter of Early v New York Tel. Co., 57 AD3d 1341, 1343 [2008]). Therefore, substantial evidence supports the finding of the Board that the case had been truly closed in 1986 and that a shift in liability to the Special Fund was appropriate (see Matter of Mucci v New York State Dept. of Corrections, 98 AD3d at 1224; Matter of Early v New York Tel. Co., 57 AD3d at 1343).  As a final matter, Workers’ Compensation Law § 123 bars the reopening of a case and award of benefits against the Special Fund “after a lapse of eighteen years from the date of the injury or death and also a lapse of eight years from the date of the last payment of compensation” (see Matter of Zechmann v Canisteo Vol. Fire Dept., 85 NY2d 747, 751 [1995]). “The question of whether or not claimant’s case is truly closed also determines the applicability of Workers’ Compensation Law § 123, as that statute’s time limits apply only to truly closed cases” (Matter of Carubia v Colt Indus. [Crucible Steel], 12 AD3d 827, 828 n [2004] [citation omitted]). Thus, because claimant’s case was truly closed in 1986 and no effort was made to reopen it until 2011, substantial evidence supports the Board’s decision that the provisions of Workers’ Compensation Law § 123 apply. Claimant’s remaining contentions have been examined and found to be unpersuasive.

Matter of Phelan,  Appeal from a decision of the Workers’ Compensation Board, filed August 14, 2013, which ruled that claimant did not sustain a causally related occupational disease and denied his claim for workers’ compensation benefits.   Claimant worked outdoors performing maintenance and grounds keeping at a state park for over 35 years. In February 2010, he developed a diabetic ulceration with a secondary formation of osteomyelitis, described as an infection in the bone, near the first metatarsal head of the right foot, which required surgery and, later, partial amputation of his right foot. Claimant stopped working in May 2010 and filed a claim for workers’ compensation benefits, alleging that his condition was the result of exposure to the cold while working outside. The employer and its workers’ compensation carrier controverted the claim upon the ground that, among others, claimant’s condition was the result of diabetes and not a result of the nature of his work, which did not cause the condition. Following hearings, a Workers’ Compensation Law Judge determined that claimant had sustained a causally related occupational disease to his right foot with a date of disablement of March 10, 2010, and awarded him benefits. On review, the Workers’ Compensation Board reversed, finding no causally related occupational disease and disallowed the claim.   Claimant now appeals and the Court affirmed.  An occupational disease is “a disease resulting from the nature of employment and contracted therein” (Workers’ Compensation Law § 2 [15]). To be entitled to workers’ compensation benefits for a condition as an occupational disease, “a claimant must establish a recognizable link between his or her condition and a distinctive feature of his or her occupation through the submission of competent medical evidence” (Matter of Connolly v Covanta Energy Corp., 123 AD3d 1394, 1395 [2014] [internal quotation marks and citations omitted]; see Matter of Satalino v Dan’s Supreme Supermarket, 91 AD3d 1019, 1019 [2012]). Further, “medical opinions regarding a causal relationship must signify a probability as to the underlying cause of the claimant’s injury which is supported by a rational basis” (Matter of Satalino v Dan’s Supreme Supermarket, 91 AD3d at 1019 [internal quotation marks and citations omitted]; see Matter of Manka v Goodyear Tire & Rubber Co., 123 AD3d 1172, 1173 [2014]). Here, claimant, a diabetic since 1991, testified that in February 2010, he developed a skin fissure or crack in the side of his right foot that developed into an ulcer and, later, became infected, which he attributed to exposure to cold weather. However, “[a]n occupational disease derives from the very nature of the employment, not a specific condition peculiar to an employee’s place of work” (Matter of Mack v County of Rockland, 71 NY2d 1008, 1009 [1988]) nor from “an environmental condition specific to the place of work” (Matter of Ball v New Era Cap Co., 21 AD3d 618, 619 [2005]; see Matter of Engler v United Parcel Serv., 1 AD3d 854, 855 [2003]). Because claimant alleged that his condition resulted from the environment in which he worked, rather than from any distinctive feature of his maintenance and grounds keeping work, the Board properly denied his claim. Further, Peter Cutler, the carrier’s podiatrist who examined claimant almost two years after the onset of the ulcer, testified that diabetes and other factors may have contributed to claimant’s condition, concluding that there was a “strong possibility that cold weather was one of the causative factors.” Michael Livingston, claimant’s treating podiatrist, also testified that there were many potential causes of his condition, including diabetes and other medical conditions as well as the cold weather, and then opined that his condition was “in part” due to extreme weather conditions. He conceded, however, that he did not know what caused the condition, a concession upon which the Board relied. “The Board was free to reject this less than compelling medical evidence, ” and its finding that claimant did not submit credible medical evidence of a causally related occupational disease is supported by substantial evidence (Matter of Cunningham v New York City Tr. Auth., 122 AD3d 1042, 1043 [2014]). Claimant’s remaining contentions also lack merit.

Matter of Flonentino,  Appeal from a decision of the Workers’ Compensation Board, filed August 16, 2013, which ruled that claimant was not entitled to an award of reduced earnings benefits for 2011.   Claimant worked as an administrative assistant for the employer, and applied for workers’ compensation benefits after developing carpal tunnel syndrome. Her claim was established for a work-related injury to her neck, upper back, both shoulders and hands. A Workers’ Compensation Law Judge classified claimant with a permanent partial disability in January 2011, noting that she could obtain reduced earnings benefits if she returned to work and earned less than her full wages because of her disability (see Workers’ Compensation Law § 15 [3] [v], [w]).   Claimant thereafter sought reduced earnings benefits for all of 2011. The Workers’ Compensation Board rejected her application, finding that the reduction in her earnings did not flow from her disability. Claimant filed an appeal. The Court affirmed .  Contrary to claimant’s contention, because this is “a non-schedule permanent partial disability case where an involuntary withdrawal has not been established, . . . [she] bears the burden of demonstrating that . . . her reduced earning capacity is due to the disability and not to unrelated factors” (Matter of Launer v Euro Brokers, 115 AD3d 1130, 1130-1131 1014], lv denied 23 NY3d 906 [2014]; see Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186, 191-192 [2012]). The question of “[w]hether reduced earnings are causally related to the compensable injury is a [factual one] for the Board to resolve and its determination will not be disturbed when supported by substantial evidence” (Matter of Launer v Euro Brokers, 115 AD3d at 1131; see Matter of Tawil v Fallsburg Cent. School Dist., 106 AD3d 1314, 1315 [2013]). Claimant testified that she spent over 40 hours a week completing her Master’s degree, which she accomplished in May 2011. She further spent an average of 10 to 15 hours a week for the entire year attempting to find a distributor for a film that she had produced and, thereafter, to market it. She was not looking for additional work for much of 2011 as a result of these endeavors, but secured a post as an adjunct lecturer that began in August 2011. To the extent that claimant’s testimony indicated that she wanted more substantial employment in her field, there is no indication that her inability to find such a position was connected to her disability. Thus, substantial evidence supports the Board’s determination that the reduction in claimant’s 2011 earnings did not flow, even in part, from her disability (see Matter of Tawil v Fallsburg Cent. School Dist., 106 AD3d at 1315-1316; Matter of Turetzky-Santaniello v Vassar Bros. Hosp., 302 AD2d 706, 707-708 [2003]; see also Matter of Zamora v New York Neurologic Assoc., 19 NY3d at 192).

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