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Case # G0406978
Date of Accident: 12/27/2010
District Office: Peekskill
Employer: SUNY @ Purchase
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 64972763-157
Date of Filing of Decision: 12/11/2013
Claimant's Attorney: Hoffman, Wachtell & Rao, LLP
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on November 19, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on February 4, 2013.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant voluntarily retired or withdrew from the labor market on May 23, 2011.

The Workers' Compensation Law Judge (WCLJ) found that the claimant voluntarily retired from his employment, had not reattached to the labor market, and that there was no basis to award compensation to the claimant for his causally-related disability from December 27, 2010, to date.

The Board Panel majority found that the claimant did not voluntarily retire but, rather, voluntarily removed himself from the labor market on May 23, 2011, and is not entitled to awards subsequent to May 23, 2011.

The dissenting Board Panel member found that the claimant voluntarily retired, as there was insufficient evidence to support a finding that his retirement was involuntary in that claimant did not give indication at the time of his separation from work that he was retiring due to his injury; claimant's treating doctor did not advise him to retire; and the claimant never requested light duty from his employer.

On March 4, 2013, the carrier filed an application for Mandatory Full Board Review, arguing that the record does not support a finding that the claimant was forced to retire due to his compensable injury and that, rather, the claimant elected to retire on his own volition.

In a rebuttal filed by claimant on March 5, 2013, he asserts that the carrier's application contains inaccuracies. The claimant further asserts that his civil service contract prohibited any kind of light duty and that he had to return to his work in 100% good health ready to assume his former position. On March 26, 2013, the claimant's attorney filed a rebuttal requesting that the majority opinion be affirmed.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

The claimant, a janitor/cleaner, filed a C-3 (Employee Claim) alleging that he sustained a work-related accident on December 27, 2010, while plowing snow. This claim was ultimately established for an injury to the claimant's back due to repetitive trauma at work in a decision filed December 8, 2011.

At the hearing on December 5, 2011, the claimant testified that he was a cleaner for the employer and that part of his job entailed snow removal from the SUNY Purchase campus in the winter. He testified that he removed snow by snowplow and by hand. He used the snowplow during eight snowstorms during the winter of 2010-2011, with each time causing him back pain. The claimant talked to his supervisor about his back condition over the course of the winter. The claimant stopped working physically in April 2011, but had accrued vacation time which he used until his retirement date of May 22, 2011. When the claimant saw Dr. Seidman in May 2011, the doctor told him that his back would continue to hurt and that it may never be what it was before. He testified that he decided to retire because he no longer could stand doing the job due to his back going out all the time. The claimant testified that he was 64 years old, that he did not request an accommodation from his employer to return to work, and he did not apply for a disability retirement. He testified that he has not looked for work since he retired.

The employer's Human Resource Administrator testified at the hearing on December 5, 2011, that the claimant did not request a reasonable accommodation from the employer. On cross-examination, the witness conceded that the claimant was responsible for a significant amount of snow removal and, along with four or five others, was responsible for clearing snow from the entire SUNY Purchase campus.

The claimant's treating chiropractor, Dr. Seidman, testified that he began treating the claimant on May 10, 2011. At that time, he took the claimant out of work due to his back injury. The doctor testified that he last examined the claimant on December 23, 2011, and that the claimant's condition had significantly improved. He testified that the claimant could return to work at his previous occupation with modifications. The doctor testified that two months prior he told the claimant he was approaching maximum benefit for chiropractic care for the acute problem and they would see him on an as-needed basis. He testified that at the time of the claimant's retirement, he felt the claimant could continue working with medical restrictions. The doctor testified that the claimant told him, and he verified with the employer, that the claimant would not be allowed to go back to work for the employer unless he was in a "pre-injury state." He testified that the claimant started with a 30% disability improving to a 5-10% disability.

In a decision filed on April 6, 2012, the WCLJ found that the claimant voluntarily retired from his employment, found that the claimant had not demonstrated labor market reattachment, and found no basis to award compensation to the claimant for his causally-related disability from the date of accident, December 27, 2010, to date.

LEGAL ANALYSIS

"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 [2005] [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 [2009] [internal quotation marks and citations omitted]).

Dr. Seidman indicated that at the time of the claimant's retirement, he felt the claimant could continue working with medical restrictions. However, the claimant believed he would not be allowed to go back to work for the employer unless he was in a "pre-injury state." Furthermore, the claimant no longer could stand doing the strenuous job, as it included snow removal, which impacted his back, and caused the claimant severe pain and discomfort. 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 back condition was 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 [2002]; see Matter of Evans v Jewish Home & Hosp., 289 AD2d 795 [2001]). 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 [1999]; see Matter of Milby v Consolidated Edison, supra at 947)" (Matter of Clohesy v Consolidated Edison Co. of N.Y., 306 AD2d 657 [2003], lv dismissed 100 NY2d 639 [2003]). Here, claimant has 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 [2008], lv dismissed 11 NY3d 863 [2008]; Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 [2012]). 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 [2007]).

Reattachment 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).

Dr. Seidman opined that the claimant is capable of working in some capacity. 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, nor has he searched for work or sought vocational retraining. Accordingly, the claimant has not shown attachment to the labor market after his retirement such that he is entitled to lost wage benefits.

Therefore, based upon a review of the record and the preponderance of the evidence in the record, the Full Board finds that claimant involuntarily retired, but nonetheless failed to subsequently demonstrate attachment to the labor market.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed on April 6, 2012, is MODIFIED to find that the claimant voluntarily removed himself from the labor market and is not entitled to awards subsequent to May 23, 2011. No further action is planned by the Board at this time.