Matter of Policarpio v Rally Restoration Corp. (2020 NY Slip Op 07442) Matter of Policarpio v Rally Restoration Corp. 2020 NY Slip Op 07442 Decided on December 10, 2020 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 10, 2020 530531 [*1]In the Matter of the Claim of Julio Policarpio, Appellant, vRally Restoration Corp. et al., Respondents. Workers' Compensation Board, Respondent. Calendar Date: October 21, 2020 Before: Egan Jr., J.P., Mulvey, Aarons, Pritzker and Colangelo, JJ. The Perecman Firm PLLC, New York City (Edward Guldi of counsel), for appellant. Gitto & Niefer, LLP, Binghamton (Jason M. Carlton of counsel), for Rally Restoration Corp. and another, respondents. Egan Jr., J.P. Appeal from a decision of the Workers' Compensation Board, filed May 9, 2019, which ruled, among other things, that claimant failed to demonstrate attachment to the labor market and rescinded his prior award of workers' compensation benefits. Claimant, a construction worker, was injured at work on January 4, 2017 and has established injuries to his back, neck, left ankle and left knee. As relevant here, claimant was awarded workers' compensation benefits at a temporary partial disability rate and, after the employer and its workers' compensation carrier raised the issue of labor market attachment, those benefits were discontinued due to claimant's failure to document his attachment to the labor market. At a hearing held on January 11, 2019, claimant, an undocumented alien who speaks limited English and does not read or write English, testified through an interpreter regarding his employment history since arriving in the United States and his unsuccessful efforts to obtain employment between April and December 2018.[FN1] On January 17, 2019, a Workers' Compensation Law Judge (hereinafter WCLJ) issued a decision finding that claimant had demonstrated a timely, diligent and persistent effort to find a job and awarded him benefits at the partial disability rate for the period of July 31, 2018 to January 11, 2019, and continuing thereafter. The employer and the carrier sought administrative review [FN2] and, by decision filed May 9, 2019, the Workers' Compensation Board found that claimant had failed to produce sufficient evidence at the January 11, 2019 hearing to establish that his job search was timely, diligent and persistent so as to demonstrate a reattachment to the labor market. Accordingly, the Board modified the WCLJ's decision by rescinding the "awards for the period of July 31, 2018 to January 11, 2019, and continuing." Claimant's application for reconsideration and/or full Board review was subsequently denied. Claimant appeals solely from the Board's May 9, 2019 decision. The sole issue before this Court is whether substantial evidence supports the Board's determination that claimant failed to demonstrate labor market attachment after July 31, 2018. Importantly, "the status of an injured worker as an undocumented alien does not, in and of itself, prohibit an award of workers' compensation benefits" (Matter of Amoah ...
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