NY Substitute Teacher’s Loss of Earnings Due to Personal Choice, Not Injury
A New York appellate court affirmed a finding by the state’s Workers’ Compensation Board that a former substitute teacher had withdrawn from the labor market and any loss of earnings was due to her choice to pursue other opportunities and not based upon her work-related injuries [Matter of Profeta v. Edward J. Bosti Elementary Sch., Connetquot Cent. Sch. Dist. of Islip, 2020 N.Y. App. Div. LEXIS 6632 (3d Dept. Nov. 12, 2020)]. The court stressed the broad latitude allowed the Board in determining whether a retirement or withdrawal from the labor market was voluntary. Substantial evidence supported the Board’s decision.
Background
Claimant worked as a per diem substitute teacher. She also also worked for a real estate company, Realty Connect USA. On February 28, 2017, she tripped and fell at the elementary school where she was working. She continued to work without any modifications for two weeks after the incident and first sought medical treatment for her injuries some five weeks after her fall. Although claimant did not return to work for any of the previously identified employers, she did accept a marketing position with a local art studio and began working there on a commission basis in July 2017. The following summer, claimant resumed working as a real estate salesperson — albeit for an entity other than Realty Connect.
Workers’ Compensation Claim
In the meantime, claimant filed a claim for workers’ compensation benefits. A WCLJ ultimately made certain awards, prompting the school district and its third-party administrator to seek review from the Board—specifically, with respect to the issue of whether claimant voluntarily withdrew from the labor market. Ultimately, the Board concluded that claimant voluntarily withdrew from the labor market two weeks after the injury-producing incident—noting as well that claimant did so without seeking treatment or advice from a medical professional. The Board further found that although claimant remained attached to the labor market, any loss of earnings was not the result of her compensable injuries. Claimant appealed.
Appellate Court’s Decision
Initially, the appellate court observed that whether a retirement or withdrawal from the labor market was voluntary was a factual determination to be made by the Board, and its decision would be upheld when supported by substantial evidence. The court noted that claimant admitted that she continued working as a substitute teacher—without restrictions or modifications—for approximately two weeks after she sustained her injuries and that she further acknowledged that she did not seek medical treatment for her injuries until roughly five weeks after the incident. Additionally, said the court, the record reflected that claimant did not register or otherwise attempt to work as a substitute teacher for the 2017-2018 academic year. While claimant contended she had not been invited to register, the court said the fact remained: claimant made no effort to resume work in that capacity in spite of the fact that her treating physician indicated in June 2017, that she could begin working with younger children, subject to certain limitations.
The court indicated the crux of the Board’s finding was that—long after her treating physician indicated in June 2017 that she could begin working with younger children—claimant chose to pursue opportunities other than substitute teaching. It was claimant’s choice, therefore, not her compensable injuries, that resulted in claimant’s loss of earnings. The court concluded that the Board’s finding was supported by substantial evidence, and in as much as claimant otherwise failed to demonstrate that her loss of earnings was causally related to her injuries, there was no basis to disturb the Board’s decision.