Claim of Smith v. Consol. Edison Co. of New York, Inc., 68 A.D.3d 1299 (N.Y. App. Div. 2009). · Go Syfert
Claim of Smith v. Consol. Edison Co. of New York, Inc., 68 A.D.3d 1299 (N.Y. App. Div. 2009). Cases Citing This Book View Copy Cite
20 citation events (20 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Wein v. Burnt Hills Ballston Lake Sch. (nyappdiv, 2022-12-15)
Treatment trajectory · 2010 → 2026 · click a year to view as-of
2010 2018 2026
Top citers, strongest first. 13 distinct citers. How cited ↗
cited Cited as authority (rule) Matter of Wein v. Burnt Hills Ballston Lake Sch.
N.Y. App. Div. · 2022 · confidence medium
Dist. , 106 AD3d at 1315; Matter of Smith v Consolidated Edison Co. of N.Y., Inc. , 68 AD3d 1299, 1301 [3d Dept 2009]).
cited Cited as authority (rule) Matter of Butler v. Trustforte Corp.
N.Y. App. Div. · 2022 · confidence medium
Dist. , 106 AD3d at 1315-1316; Matter of Smith v Consolidated Edison Co. of N.Y., Inc. , 68 AD3d 1299, 1300-1301 [2009]; Matter of Fisher v Bothar Constr. , 49 AD3d at 1044 ).
discussed Cited as authority (rule) Matter of Usewicz v. Nozbestos Constr. Corp.
N.Y. App. Div. · 2021 · confidence medium
As such, claimant would only be entitled to wage replacement benefits under the occupational disease claim if, upon reattachment to the labor market, his "earning capacity and his ability to find comparable employment had been adversely affected by" his lead exposure ( Matter of Smith v Consolidated Edison of Co. N.Y., Inc. , 68 AD3d 1299, 1300 [2009]; see Matter of Pontillo v Consolidated Edison of N.Y., Inc. , 156 AD3d 1064, 1065 [2017]; Matter of Parrelli v Atlantic Constr. , 67 AD3d 1265, 1266 [2009]).
discussed Cited as authority (rule) Matter of Marcy v. City of Albany Fire Dept.
N.Y. App. Div. · 2019 · confidence medium
Thus, we conclude that the full Board's determination that claimant's reduced earnings were dictated by his employer and [*3]economic conditions, not his established back injury, is supported by substantial evidence ( see Matter of Smith v Consolidated Edison Co. of N.Y., Inc. , 68 AD3d 1299, 1301 [2009]; see also Matter of Tawil v Fallsburg Cent.
discussed Cited as authority (rule) Matter of Figueroa v. Consolidated Edison Co. of N.Y., Inc.
N.Y. App. Div. · 2019 · confidence medium
As we have repeatedly held, where a claimant has voluntarily retired, but claims to have later reattached to the labor market, he or she "must demonstrate that his or her 'earning capacity and his [or her] ability to find comparable employment had been adversely affected by his [or her] disability'" ( Matter of Pontillo v Consolidated Edison of N.Y., Inc. , 156 AD3d 1064, 1065 [2017], quoting Matter of Smith v Consolidated Edison Co. of N.Y., Inc. , 68 AD3d 1299, 1300 [2009]; see Matter of Tawil v Fallsburg Cent.
discussed Cited as authority (rule) Claim of Pontillo v. Consolidated Edison of New York, Inc.
N.Y. App. Div. · 2017 · confidence medium
In order to be entitled to benefits, a claimant who has previously voluntarily retired but claims to have subsequently reattached to the labor market must demonstrate that his or her “earning capacity and his [or her] ability to find comparable employment had been adversely affected by his [or her] disability” (Matter of Smith v Consolidated Edison Co. of N.Y., Inc., 68 AD3d 1299, 1300 [2009]; see Matter of Tawil v Fallsburg Cent.
discussed Cited as authority (rule) Claim of Cole v. Consolidated Edison Co. of N.Y., Inc.
N.Y. App. Div. · 2015 · confidence medium
“Where a claimant has a permanent partial disability but there has been no finding of involuntary retirement, the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions,” and the Board’s determination in that regard will be upheld if supported by substantial evidence (Matter of Winters v Advance Auto Parts, 119 AD3d 1041 , 1042 [2014] [internal quotation marks and citations omitted]; see Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186, 191-193 [2012]; Matter of Launer v Euro Brokers, 115 AD3…
discussed Cited as authority (rule) Claim of Cole v. Consolidated Edison Co. of N.Y., Inc.
N.Y. App. Div. · 2015 · confidence medium
“Where a claimant has a permanent partial disability but there has been no finding of involuntary retirement, the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions,” and the Board’s determination in that regard will be upheld if supported by substantial evidence (Matter of Winters v Advance Auto Parts, 119 AD3d 1041 , 1042 [2014] [internal quotation marks and citations omitted]; see Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186, 191-193 [2012]; Matter of Launer v Euro Brokers, 115 AD3…
cited Cited as authority (rule) Claim of Launer v. Euro Brokers
N.Y. App. Div. · 2014 · confidence medium
Dist., 106 AD3d 1314 , 1315 [2013]; Matter of Smith v Consolidated Edison Co. of N.Y., Inc., 68 AD3d 1299, 1301 [2009]).
cited Cited as authority (rule) Claim of Launer v. Euro Brokers
N.Y. App. Div. · 2014 · confidence medium
Dist., 106 AD3d 1314 , 1315 [2013]; Matter of Smith v Consolidated Edison Co. of N.Y., Inc., 68 AD3d 1299, 1301 [2009]).
discussed Cited as authority (rule) Claim of Tawil v. Fallsburg Central School District
N.Y. App. Div. · 2013 · confidence medium
When employment is lost due to factors other than a compensable injury, the claimant bears the burden of establishing that his or her disability contributed to any subsequent reduction in earnings (see Matter of Smith v Consolidated Edison Co. of N.Y., Inc., 68 AD3d 1299, 1300-1301 [2009]; Matter of Fisher v Bothar Constr., 49 AD3d 1042, 1044 [2008]).
discussed Cited as authority (rule) Claim of Tawil v. Fallsburg Central School District
N.Y. App. Div. · 2013 · confidence medium
When employment is lost due to factors other than a compensable injury, the claimant bears the burden of establishing that his or her disability contributed to any subsequent reduction in earnings (see Matter of Smith v Consolidated Edison Co. of N.Y., Inc., 68 AD3d 1299, 1300-1301 [2009]; Matter of Fisher v Bothar Constr., 49 AD3d 1042, 1044 [2008]).
discussed Cited as authority (rule) Claim of Balint v. NYS Department of Corrections
N.Y. App. Div. · 2010 · confidence medium
As claimant voluntarily retired, he was required to demonstrate that his employment search took into account any limitations imposed by his disability and, in particular, “that his earning capacity and his ability to find comparable employment had been adversely affected by his disability” (Matter of Smith v Consolidated Edison Co. of N.Y., Inc., 68 AD3d 1299, 1300 [2009]; see Matter of Turetzky-Santaniello v Vassar Bros.
Retrieving the full opinion text from the archive…
In the Matter of the Claim of Frederick Smith
v.
Consolidated Edison Company of New York, Inc., Workers' Compensation Board
Appellate Division of the Supreme Court of the State of New York.
Dec 10, 2009.
68 A.D.3d 1299
Kavanagh.
Cited by 13 opinions  |  Published
Kavanagh, J.

In the course of his employment with Consolidated Edison Company of New York, Inc., claimant was exposed to dust while working in lower Manhattan following the terrorist attacks of September 11, 2001. While claimant was subsequently diagnosed with reactive airway disease and his claim for workers’ compensation benefits was established in 2004, he sustained no compensable lost time and continued to work until he retired on February 1, 2007. At that time, hearings on his claim for workers’ compensation benefits were held and a Workers’ Compensation Law Judge determined that claimant was not entitled to a reduced earnings award because, even though permanently partially disabled, he had voluntarily withdrawn from the labor market due to his refusal to accept a light duty assignment.

In September 2007, claimant began working two to three hours each week as a school crossing guard and submitted a request for further action on his claim for workers’ compensation benefits. After a hearing, the Workers’ Compensation Law Judge ruled that claimant had demonstrated that he was entitled to a reduced earnings award, excluding the seven-month period immediately following his retirement from Consolidated Edison before he began his part-time employment as a school crossing guard. The Workers’ Compensation Board affirmed that determination, prompting this appeal by the employer and its claims administrator.

We reverse. Since claimant had voluntarily retired from his position with Consolidated Edison in February 2007, he was obligated, before obtaining a reduced earnings award, to demonstrate that he had attempted to obtain employment that took into account the restrictions caused by his disability (see Matter of Mills v J.C. Penney, 59 AD3d 755, 756 [2009]; Matter of Peck v James Sq. Nursing Home, 34 AD3d 1033, 1034 [2006]). In particular, he was required to demonstrate that his earning capacity and his ability to find comparable employment had been adversely affected by his disability (see Matter of Rothe v United Med. Assoc., 18 AD3d 1093, 1094 [2005]; Matter of Hare v Champion Intl., 303 AD2d 799, 800 [2003]). In that regard, claimant presented no evidence that his ability to earn an income had been reduced because he was disabled (see Matter of Petrillo v Cooke, 60 AD3d 1115,1116 [2009]; Matter of Thompson v Saucke Bros. Constr. Co., 2 AD3d 993, 993-994 [2003], lv denied [*1301] 2 NY3d 703 [2004]). In fact, he failed to demonstrate that other factors totally unrelated to his disability did not have an adverse affect on his earning capacity, and acknowledged that his limited work schedule is dictated by his employer’s needs and not by his disability (see Matter of Turetzky-Santaniello v Vassar Bros. Hosp., 302 AD2d 706, 707-708 [2003]). Claimant also testified that, since his retirement, he submitted numerous applications for both part-time and full-time employment, and that one of those positions involved work similar to that which he performed while employed by Consolidated Edison. Significantly, claimant admits that he has not informed any of these prospective employers that he is disabled or that his ability to work is in any way impaired by his disability. Accordingly, claimant has failed to meet his burden of establishing that his reduced earnings are attributable to his disability, as opposed to age, existing economic conditions, or other factors that are not in any way related to his disability (see Matter of Turetzky-Santaniello v Vassar Bros. Hosp., 302 AD2d at 707-708). As a result, the Board’s decision that he is entitled to a reduced earnings award is not supported by substantial evidence.

Cardona, EJ., Mercure, Spain and Malone Jr., JJ., concur. Ordered that the decision is reversed, without costs, and matter remitted to the Workers’ Compensation Board for further proceedings not inconsistent with this Court’s decision.