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Workers' Compensation Board

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Case # G1214034
Date of Accident: 02/03/2015
District Office: Albany
Employer: Kingston Housing Authority
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 67733410
Date of Filing of Decision: 12/02/2016
Claimant's Attorney: Dall Vechia & Draft PC
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on November 15, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed May 12, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether further development of the record regarding the claimant's retirement should have been conducted prior to the direction of continuing benefits.

The Workers' Compensation Law Judge (WCLJ) found that the claimant involuntarily retired and directed awards payable without prejudice to apportionment.

The Board Panel majority affirmed the decision.

The dissenting Board Panel member would rescind the awards pending full development of the record on the issue of voluntary retirement.

The carrier filed an application for Mandatory Full Board Review on June 7, 2016.

The claimant filed a rebuttal on June 27, 2016.

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

FACTS

The claimant has two established work-related claims for injuries to his low back. The first accident occurred on September 26, 2013, when the claimant, a maintenance worker employed by a municipal housing authority, injured his low back while painting a concrete stoop at work (WCB # G0978636). The claimant was disabled and remained out of work until September 19, 2014, when he returned to his job with the housing authority. He continued treating for his low back. A lumbar MRI performed in August of 2014 showed multiple levels of lumbar disc bulging and ligamentous hypertrophy, as well as a disc herniation, nerve compression, and narrowing of the disc space. The treatment records reveal that the claimant's doctor recommended job retraining in December of 2014 (see Document ID # 240546291, p. 12). In spite of this recommendation, the claimant continued to work.

This claim (WCB # G1214034) is based on a subsequent injury to the claimant's low back sustained while he was shoveling snow at work on February 3, 2015. On February 4, 2015, the claimant was examined at the office of his treating orthopedist, Dr. Dentico, and a steroid epidural injection was recommended. The claimant was given a note to remain out of work pending the procedure, and was told "again" to apply for job retraining. In a report dated March 16, 2015, Dr. Dentico assessed the claimant with a moderate disability and noted that "no return to work is recommended at this time." The carrier accepted liability for the February 3, 2015, injury and made voluntary compensation payments based upon the medical evidence.

On July 9, 2015, the claimant was examined by consulting physician, Dr. Mills, at the carrier's request. Dr. Mills assessed the claimant with a mild partial disability, and made no comment as to physical restrictions. According to a SROI-CA (Subsequent Report of Injury - Change in Benefit Amount) filed on August 10, 2015, the carrier reduced the claimant's benefits to the mild partial disability rate. On August 13, 2015, the claimant requested a hearing to address the proper rate of benefits. On September 1, 2015, the Board notified the parties that a hearing had been scheduled to address the claim, including the rate of compensation, lost time, an employer reimbursement request, and the claimant's degree of disability. The carrier continued to pay the claimant's benefits through September 24, 2015.

At the September 25, 2015, hearing, the carrier noted that the claimant had retired on April 4, 2015, and argued that the claimant's benefits should have been suspended as of that date. The carrier argued that the claimant voluntarily removed himself from the labor market, but did not offer any evidence other than the fact that the claimant had retired. The claimant's counsel advised that the claimant had taken a regular retirement while his claim for a disability retirement was pending. After considering the evidence, the WCLJ found that the medical reports supported the claimant's decision to retire, and found no evidence of voluntary removal. The WCLJ acknowledged the carrier's right to pursue the issue of labor market attachment, and directed the claimant to produce evidence of a work search within sixty days. The WCLJ awarded compensation benefits payable without prejudice to apportionment to the claimant's earlier claim. The carrier objected, arguing that it should have been permitted to develop the record regarding the claimant's retirement. The findings made at the September 25, 2015, hearing are contained in the WCLJ decision filed on September 30, 2015.

In its application for administrative review, the carrier argued that since the claimant had admitted that he had taken a regular retirement, the WCLJ erred by directing awards prior to record development regarding voluntary retirement and labor market attachment. The carrier argued the fact that the claimant decided to retire at 56 years old, within only two months of his injury, at a time when he had been assessed with a temporary partial disability, constitutes substantial evidence that the retirement was voluntary. The carrier asked that benefits after April 4, 2015, be rescinded.

In rebuttal, the claimant argued that the carrier has put forth no offer of proof upon which to justify record development regarding his retirement. The claimant also references his prior accident and notes that his doctors had already suggested that he seek retraining before his most recent accident occurred. The claimant asked that the WCLJ decision be affirmed.

The claimant subsequently submitted a C-258 (Claimant's Record of Job Search Efforts/Contacts), evidence of orientation attendance at a One Stop facility, a resume, and a letter from the State Comptroller approving the claimant's disability retirement.

LEGAL ANALYSIS

The carrier raised the issue of voluntary retirement at the September 25, 2015, hearing, which was scheduled to consider the issues of accident, notice and causal relationship; rate of compensation and/or average weekly wage; lost time; employer reimbursement, and degree of disability. "Although the regulations provide that a non-noticed subject may be considered and determined at any hearing, that may be done only 'if the administration of justice will thereby be substantially served' (12 NYCRR 300.8 [c]) and the hearing is conducted in such a manner as 'to ascertain the substantial rights of the parties' (12 NYCRR 300.9)" (Matter of Ickes v Sayville Animal Hosp., 40 AD3d 1189 [2007]). The carrier did not have the opportunity to question claimant about his retirement, offer evidence, or otherwise be heard on the issue. While there may be some evidence in the record to support a finding that claimant's decision to retire was due, at least in part, to his work-related injuries, the carrier nonetheless has a due process right to develop the record on that issue, which it raised at the first hearing in this matter (id.).

However, as claimant was also not afforded notice that the issue of voluntarily retirement would be considered, or the opportunity to be heard on that issue, the awards made by the WCLJ, which are supported by the medical evidence in the record, should continue pending development of the record (see Matter of Dingman v Town of Lake Luzerne, 94 AD3d 1287 [2012]).

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on September 30, 2015, is MODIFIED to direct development of the record regarding the reason for claimant's retirement, with the carrier afforded the opportunity to question claimant about his retirement and offer evidence on the issue. In all other respects that decision is affirmed and remains in effect. The case is continued.