The Full Board, at its meeting on April 16, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on July 12, 2012.
The issues presented for Mandatory Full Board Review are whether the claimant voluntarily or involuntarily retired, and whether claimant is attached to the labor market.
The Workers' Compensation Law Judge (WCLJ) found that although the claimant's compensable condition contributed to his decision to retire, the claimant was not attached to the labor market due to his failure to search for work following his retirement, and was therefore not entitled to lost wage awards.
The Board Panel majority modified the WCLJ's decision to find that the claimant voluntarily retired and that the claimant has not reattached to the labor market.
The dissenting Board Panel member would affirm the WCLJ's finding that the claimant's retirement was involuntary, and would further find, based on Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 (2012), that the claimant cannot find a suitable job because of his disability so that his subsequent reduction in earnings is due to his causally related disability.
On August 10, 2012, the claimant filed a request for Mandatory Full Board Review, arguing that based on the medical and documentary evidence, his retirement was involuntary and that the Full Board adopt the opinion of the dissenting Board Panel member.
On September 10, 2012, the self-insured employer (SIE) filed a rebuttal, asserting that claimant's retirement from his employment was unrelated to his work injuries and thus voluntary, and that he subsequently failed to attach to the labor market due to his failure to show he has made any meaningful effort to secure employment.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On September 3, 2008, the claimant filed a C-3 alleging that he developed post-traumatic stress disorder and depression as a result of working as a heavy equipment operator at the Fresh Kills Landfill following the September 11, 2001, terrorist attacks. The claimant had previously submitted a December 16, 2006, WTC-12 (Registration of Participation in World Trade Center Rescue, Recovery and/or Clean-up Operations) form, in which he indicated that he worked at the Fresh Kills Landfill following September 11, 2001. The SIE controverted the claim. By an administrative decision filed January 15, 2009, which became final on February 17, 2009, the Board indicated that no further action would be taken with respect to this claim based on claimant's failure to produce medical evidence of an injury.
The claimant submitted a November 10, 2010, RFA-1 (Claimant's Request for Further Action), in which a hearing was requested on the issue of prima facie medical evidence. Attached to this form were two medical reports. In an October 19, 2010, report, the claimant's treating psychiatrist, Dr. Bijlani, noted that she had treated the claimant since August 20, 2007, diagnosed the claimant with causally related post-traumatic stress disorder, and that she had suggested in 2007 that the SIE transfer the claimant from the landfill due to his compensable psychiatric condition. Dr. Bijlani noted that because the SIE denied the claimant's transfer request, the claimant was no longer able to work. An undated report addressed to the SIE from Dr. Bijlani was also attached to this form. In this report, Dr. Bijlani noted that the claimant had worked at the landfill, and was exposed to human remains. While working, the claimant suffered from panic attacks. Dr. Bijlani diagnosed the claimant with causally related post-traumatic stress disorder. Dr. Bijlani requested that the SIE transfer the claimant to a different location, due to the causally related post-traumatic stress disorder.
In a decision filed on December 16, 2010, the WCLJ found prime facie medical evidence for the claimant's post-traumatic stress disorder, and directed the SIE to submit a consultant's report.
The SIE's consultant, Dr. Miskin, filed a February 11, 2011, report, in which he diagnosed the claimant with causally related post-traumatic stress disorder, but concluded that the claimant exhibited no disability.
The claimant testified on March 28, 2011, that he began working at the Fresh Kills Landfill in January 1986, and continued to work there after September 11, 2001. He was laid-off in 2003, but returned to work at Fresh Kills in May 2004, and continued to work there until he stopped working in September 2009. He began treating with Dr. Bijlani in 2007, due to panic attacks. He explained that Dr. Bijlani advised him to cease working at the landfill. In 2007 and 2008, the claimant requested a transfer, which was denied. While working, the claimant would sometimes park his machine while he waited for a panic attack to pass. He never missed a full day of work due to his panic attacks. He ceased working in September of 2009. The claimant explained that he witnessed a coworker injure a foot while at work, which caused a panic attack. The claimant never took his medication while working, since he operated heavy machinery. He feared that if he continued working and suffering panic attacks, he could injure himself as his coworker did. The claimant took a regular age-based retirement. While the claimant was aware of a disability retirement option, he stated that if he took the disability retirement, his benefits would be significantly less than if he took the regular retirement. The claimant conceded that he never advised the SIE that he was stopping work due to his post-traumatic stress disorder. The claimant testified that he has not returned to work, has not sought work with another employer and has not sought vocational retraining.
The claimant's former supervisor testified on March 28, 2011, that he supervised the claimant from September of 2001 to May of 2004. He was responsible for preparing employees' retirement paperwork. During the supervisor's testimony, a document prepared during the claimant's exit interview was presented. That document is not contained in the Board file. On the August 25, 2009, document, the reason listed for the claimant's retirement was "retire." While there were check boxes for whether the retirement was voluntary or involuntary, the claimant checked the voluntary retirement box. Claimant's supervisor had no memory of the claimant raising health reasons as a basis for the retirement. Claimant's supervisor conceded that a regular retirement could be obtained immediately if one qualified for the age and years of service, whereas a disability retirement could take up to one year to process.
In a decision filed on March 31, 2011, the WCLJ established accident, notice, and causal relationship for the claimant's post-traumatic stress disorder, established the date of accident as April 1, 2002, and found that the claimant's compensable condition contributed to his decision to retire, thus rendering it involuntary. However, the WCLJ found that claimant was not entitled to lost wage awards because he had not searched for work after his retirement and was therefore not attached to the labor market.
The claimant has not been classified as permanently partially disabled.
"As a general rule, a withdrawal is not voluntary when there is evidence that the claimant's disability caused or contributed to the retirement" (Matter of Bury v Great Neck UFSD, 14 AD3d 786  [internal quotation marks and citations omitted]). The Court of Appeals in Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 (2012), held that there is no mandatory inference of entitlement to wage-loss benefits, "regardless of whether claimant has completely retired from the work force or merely withdrawn from the particular employment in which she was engaged at the time of her accident. An inference of causation may be drawn from the disability-related withdrawal, depending on the nature of the disability and the nature of the claimant's work" (id.).
"Whether a claimant has voluntarily withdrawn from the labor market is a factual issue for the Board to resolve … The Board, furthermore, has broad authority to resolve factual issues based upon the credibility of witnesses" (Matter of Renteria v Santino's Cafe, 62 AD3d 1233  [internal quotation marks and citations omitted]).
Dr. Bijlani recommended that the claimant be transferred from the landfill. In his report dated February 11, 2011, Dr. Miskin indicated that the claimant could resume his employment without restrictions. While claimant lost no time from work prior to his retirement, and applied for a service retirement based on years of service, he credibly testified that his panic attacks were a contributing factor to his decision to cease working.
"Evidence that a claimant received medical advice to retire is not essential to establishing that the claimant did not voluntarily withdraw from the labor market" (Matter of Curtis v Dale Pipery Corp., 295 AD2d 836 ; see Matter of Evans v Jewish Home & Hosp., 289 AD2d 795 ). There must, however, 'be some evidence that the "claimant's disability caused or contributed to retirement"' (Matter of Curtis v Dale Pipery Corp., supra at 837, quoting Matter of Camarda v New York Tel., 262 AD2d 816 ; see Matter of Milby v Consolidated Edison, supra at 947)" (Matter of Clohesy v Consolidated Edison Co. of N.Y., 306 AD2d 657 , lv dismissed 100 NY2d 639 ). In light of claimant's panic attacks, and his request for a transfer, as recommended by Dr. Bijlani, which was denied, claimant adequately demonstrated that the decision to retire was based in part on the causally-related disability.
Therefore, the preponderance of the evidence suggests that the claimant's retirement was involuntary.
Subsequent to separation from employment, the claimant has an obligation to demonstrate reattachment to the labor market with evidence of a search for employment within medical restrictions (Matter of Hare v Champion Intl., 50 AD3d 1254 , lv dismissed 11 NY3d 863 ; Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 ). A partially disabled person need only seek employment within his or her medical restrictions (Matter of Sanchez v Consolidated Edison Co. of N.Y., Inc., 40 AD3d 1153 ).
Attachment to the labor market can be demonstrated by credible documentary evidence showing that claimant is actively seeking work within the restrictions through an independent job search that is timely, diligent, and persistent; or is actively participating in a job-location service such as (1) New York State's Department of Labor's re-employment services, (2) One-Stop Career Centers, or (3) a job service commonly utilized to secure work within a specific industry; or is actively participating in vocational rehabilitation through VESID or other Board-approved rehabilitation program; or is actively participating in a job-retraining program; or is attending an accredited educational institution full time to pursue employment within the work restrictions (Matter of American Axle, 2010 NY Wrk Comp 80303659).
Both Dr. Bijlani and Dr. Miskin are in agreement that the claimant is capable of working. The claimant has failed to show he has found alternative work consistent with his physical limitations, and has failed to show reasonable efforts at finding such work. The claimant admitted that he has not returned to work, has not searched for work and has not sought vocational retraining. Accordingly, the claimant has not shown a reattachment to the labor market post-voluntarily retirement, such that he is not attached to the labor market.
Therefore, based upon a preponderance of the evidence, the Full Board finds that claimant involuntarily retired, but nonetheless failed to subsequently demonstrate attachment per American Axle subsequent to his retirement and is not entitled to lost wage benefits.
ACCORDINGLY, the WCLJ decision filed on March 31, 2011, is AFFIRMED. No further action is planned by the Board at this time.