(concurring). I concur in the result only upon constraint of this Court’s prior determinations in Matter of Pittman v ABM Indus., Inc. (24 AD3d 1056 [2005]) and Matter of Jiminez v Waldbaums (9 AD3d 99 [2004]). In my view, however, a conscious refusal to seek employment consistent with one’s medical limitations constitutes a voluntary withdrawal from the labor market. These decisions hold that a failure to seek any employment, even employment approved by a treating physician, is insufficient to defeat the inference that a claimant’s partial disability contributes to the claimant’s reduced earnings in retirement (id.). By so ruling, this Court has effectively deprived every workers’ compensation carrier of an opportunity to rebut the inference. I view a decision not to seek any employment within one’s medical restrictions to be sufficient proof that something other than the disability was the sole cause of a claimant’s reduced earning capacity. Pittman and Jiminez have effectively created an irrebutable presumption out of an inference and have thwarted the intent of the Legislature by creating a lifetime “retirement supplement without any reasonable connection between the disability and any supposed loss of wages” (Matter of Mazziotto v Brookfield Constr. Co., 40 AD2d 245, 248 [1972]).
Pittman and Jiminez are also contrary to the holding in Matter of Scarpelli v Bevco Trucking Corp. (305 AD2d 892 [2003]), wherein this Court affirmed a Workers’ Compensation Board decision that a permanently partially disabled claimant who failed to seek other work after retirement had voluntarily withdrawn from the labor market. This Court specifically held in that case that the claimant had “not sought work of any kind since his retirement and, thus, there is no evidence that his disability contributed to his inability to obtain employment” (id. *1202at 893). Lastly, Pittman and Jiminez illogically create a new class of claimants—permanently partially disabled retirees— who are not required to show that their diminution in income is attributable to their disability, even though permanently partially disabled claimants who do not retire must make such a showing (see Matter of Rothe v United Med. Assoc., 18 AD3d 1093, 1094 [2005]; see also Matter of Capezzuti v Glens Falls Hosp., 282 AD2d 808, 810 [2001]; Matter of Campbell v AC Rochester Prods., Div. of Gen. Motors Corp., 268 AD2d 711, 712 [2000]).
Ordered that the decision is reversed, with costs, and matter remitted to the Workers’ Compensation Board for further proceedings not inconsistent with this Court’s decision.