Our client was permanently disabled due to injuries she suffered while working as a veterinary technician. While she was receiving permanent partial disability benefits, the insurance company requested a hearing because she had not returned a “work activity” statement. At the hearing, the insurance company raised the issue of “voluntary withdrawal from the labor market” for the first time. The WCL Judge continued payments, and the insurance company appealed.
On appeal, the Workers’ Compensation Board suspended payments to our client, finding that she had “voluntarily withdrawn from the labor market.” We appealed, and the Appellate Division, Third Department reversed the Board’s decision, finding that our client “was afforded no opportunity to be heard on the issue of voluntary removal or even to ask for an adjournment for that purpose.” In short, our client had a due process right to be notified about the issue before the hearing and to submit her evidence on the issue, which did not occur in this case. Therefore, it was improper for the Board to suspend payments to her.