CLAIMANT DEMONSTRATED HE HAD NOT REMOVED HIMSELF FROM THE LABOR MARKET WITH DOCUMENTARY EVIDENCE; CLAIMANT WAS THEREFORE ENTITLED TO BENEFITS FROM THE TIME HE DEMONSTRATED ATTACHMENT TO THE WORKFORCE (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, over a dissent, determined claimant sufficiently demonstrated he had not removed himself from the job market and was therefore entitled to benefits:

Claimant submitted extensive evidence of his job search, both through job location services and individually, providing more than 600 pages of proof that he filed applications to numerous job postings. These included applications for positions such as dishwasher, doorman, cook, parking garage attendant, kitchen attendant/helper, juice barista and laundry attendant. However, as claimant testified, despite having applied for innumerable jobs, he did not receive any interviews. He also applied for vocational rehabilitation services and was advised to enroll in English as a second language classes, which he promptly did. The WCLJ found that claimant demonstrated attachment to the workforce as of November 16, 2021, the date his English classes started, and we agree.

We are mindful that the Board “is the sole arbiter of witness credibility” … , but the decision here does not hinge on witness credibility. Rather, documentary evidence amply demonstrates that claimant has engaged in a “diligent and persistent job search so as to demonstrate attachment to the labor market” …, and we find that the Board’s conclusion to the contrary is not supported by substantial evidence…. . Matter of Lapan v Trade Winds Envtl., 2024 NY Slip Op 05929, Third Department 11-27-24

Practice Point: Here there was documentary evidence claimant was trying to find work. The Workers’ Compensation Board’s conclusion claimant had removed himself from the workforce was reversed.