The Third Department determined the claimant was entitled to benefits re: his partial disability (for a back injury) up until the time the Special Fund raised, at the hearing, the requirement that claimant demonstrate his attachment to the labor market, i.e., the requirement that claimant demonstrate his inability to work was the result of the back injury. Claimant had stopped working because of an unrelated injury to his knee and the Special Fund argued he was not entitled to any benefits for the back injury:
… [A]bsent a finding of involuntary retirement, claimants with a partial disability have “an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions” … . As the Special Fund concedes, however, the Board has previously held that awards should be continued until the carrier has raised the issue of labor market attachment, thereby allowing for development of the record on the issue … . The Special Fund does not challenge the principle set forth in the Board's prior decisions, but argues that they are distinguishable. We disagree. The award sought herein was for lost time prior to the date of the hearing, when the Special Fund raised the issue of attachment to the labor market for the first time. The award of benefits for that period was therefore entirely consistent with the Board's prior precedent. Matter of Scott v Rochester City Sch Dist, 2015 NY Slip Op 01219, 3rd Dept 2-11-15