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Workers' Compensation Board

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Case # 00451345
Date of Accident: 06/15/2004
District Office: NYC
Employer: Cement & Concrete Worker
Carrier: Lamorak Insurance Company
Carrier ID No.: W060008
Carrier Case No.: 0CC01269B
Date of Filing of Decision: 03/24/2017
Claimant's Attorney: Joseph A. Romano Law Offices
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on February 28. 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed October 21, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant voluntarily retired from the labor market.

The Workers' Compensation Law Judge (WCLJ) found the claimant did not voluntarily retire from the labor market and was entitled to awards for lost time and/or reduced earnings.

The Board Panel majority disagreed, finding the claimant voluntarily retired from the labor market.

The dissenting Board Panel member would find that the claimant involuntarily retired from the labor market based on the claimant's testimony that he retired because he could no longer drive for extended periods of time.

The claimant filed an application for Mandatory Full Board Review on November 3, 2016, arguing that his retirement was causally related to his established injuries.

The carrier filed a rebuttal on December 1, 2016, arguing that the Board Panel majority's decision should be affirmed because there is no evidence showing the claimant was advised to retire because of his injuries

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

FACTS

This case is established for work-related injuries to the right hip, neck and back for an accident that occurred on June 15, 2004. By notice of decision dated July 18, 2007, the WCLJ found the claimant was permanently partially disabled, but had no compensable lost for the period from June 16, 2004, until July 11, 2007.

In a C-4 (Attending Doctor's Report and Carrier/Employer Billing Form) dated February 5, 2009, Dr. Spivak reported the claimant underwent a combined anterior and posterior spinal fusion of L5-S1 and total disc replacement at L4-L5.

In a March 28, 2011, office note attached to an MG-2 (Attending Doctor's Request for Approval of Variance and Carrier's Response) filed on April 21, 2011, Dr. Spivak noted that x-rays revealed excellent and full healing of the fusion at L5-S1 and no change in the position of the disc replacement at L4-L5, with moderate disc degeneration at L2-L3 and L3-L4. Dr. Spivak prescribed physical therapy and noted the pain was mainly muscular but could be due to moderate disc degeneration above the surgical site.

According to Forms C-8.4 (Notice to Health Care Provider and Injured Worker of a Carrier's Refusal to Pay All (Or a Portion Of) a Medical Bill Due to Valuation Objection(s)) dated August 9, 2011, the claimant underwent physical therapy several times in April and May 2011. There are no medical or physical therapy reports in the case file from May 2011 until August 2014.

By an RFA-1LC (Request for Further Action by Legal Counsel) dated May 5, 2015, the claimant's attorney requested a hearing to address the issue of lost time subsequent to February 1, 2013. By notice of decision filed on July 15, 2015, the WCLJ found no compensable lost time from February 11, 2011, until February 1, 2013, noted the claimant raised the issue of reduced earnings as of February 1, 2013, and ruled no further action pending evidence of reduced earnings.

By an RFA-1LC (Request for Further Action by Legal Counsel) dated July 20, 2015, the claimant submitted paystubs from The Safety Group, Ltd. which indicated the claimant worked for 69 regular hours and 26 overtime hours, and 72 regular hours with 21 overtime hours for two separate time periods in June and July 2015. The claimant also submitted IRS Form 1099 for the year ended 2014, which showed the claimant earned $19,277.50 for the Safety Group, Ltd. in 2014. By notice of decision dated February 16, 2016, the WCLJ scheduled a hearing for testimony from the claimant and the employer with respect to the claimant's separation from employment.

At the beginning of the hearing held on April 7, 2016, the employer waived testimony of its witness because the employer determined the testimony would not be probative. The claimant testified he was working for the Concrete and Cement Workers Local 20 at the beginning of 2013, as a business manager driving to work sites and meetings to make sure the jobs were running smoothly. The claimant testified that he retired from that position in February 2013 "because I couldn't take the driving anymore. I had had a couple of fender benders and, you know, it was just too much for me. Physically too much to keep driving." He returned to work in May or June 2013, as a safety consultant for the Safety Group performing audits and finding safety irregularities on job sites. He worked two days per week for eight hours per day, and stopped in October 2013, but returned to work again in May or June 2014, for the same company.

On cross-examination, the claimant testified that when he worked for Concrete and Cement Workers Local 20, he would drive to different job sites in an assigned area. He stopped working on his own, and not because a doctor told him to stop working. He took a regular retirement, not a disability retirement, at age 69 and he began receiving Social Security income at the age of 66. He has occasionally worked for more than two days per week for the Safety Group, but if the company offered him three or four days in a row, he would not work more than two days in a row. The claimant testified he had planned to retire when he was "like around 75." The claimant testified that he saw a pain management specialist between March 28, 2011, and July 25, 2014, but the WCLJ noted there were no medical records in the case file for that time period.

At the conclusion of the testimony, the WCLJ ruled the claimant retired earlier because of his established injuries and found the claimant was entitled to awards for lost time and/or reduced earnings. These findings were memorialized in the notice of decision filed April 12, 2016, wherein it was also noted the carrier waived testimony of the lay witness.

The carrier filed an application for administrative review arguing that claimant voluntarily retired from the labor market because the claimant missed little time from work prior to his retirement, he had not received any sort of modified duty as a result of his work-related injury, and there was no evidence that any of his supervisors urged him to retire.

The claimant filed an untimely rebuttal.

LEGAL ANALYSIS

First, the claimant's reliance on Leeber is misplaced. In Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 (2012), the Court of Appeals held that the Board is not required to "infer, from the finding that a claimant withdrew from her employment due to an accident at her work place, that her post-accident loss of wages is attributable to physical limitations caused by the accident" (id.). For a non-scheduled permanently partially disabled claimant, "a central question for the Board to resolve, before awarding wage replacement benefits . . . is 'whether a claimant has maintained a sufficient attachment to the labor market' (Burns v Varriale, 9 NY3d 207 [2007]; see Matter of Jordan v Decorative Co., 230 NY 522 [1921])" (Zamora, 19 NY3d 186 [2012]). This initial showing is claimant's burden. "'Claimant must demonstrate that his or her reduced earning capacity is due to the disability, not . . . factors unrelated to the disability' (Burns, 9 NY3d at 216)" (Zamora, 19 NY3d 186 [2012]).

There are two aspects to this showing. First, the claimant must show that the work-related disability was the reason for separation from employment. "In reaching its decision on this question, the Board will, of course, consider the circumstances under which claimant originally stopped full-duty work. 'If the Board determines that a workers' compensation claimant has a permanent partial disability and that the claimant retired from his or her job due to that disability, an inference that his or her reduced future earnings resulted from the disability may be drawn'" (Zamora, 19 NY3d 186 [2012], citing Burns, 9 NY3d 207 [2007]). "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" (Zamora, 19 NY3d 186 [2012]). The evaluation and permissible inference is the same "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" (id.). In both instances, "the Board may, but need not, infer that the claimant cannot find a suitable job because of her disability" (id.).

Secondly, the claimant can show that he or she has found "alternative work consistent with his or her physical limitations, or at least [show] reasonable efforts at finding such work..." (id.). This evidentiary burden, if carried, "can prove to the Board that the cause of his or her reduced income is a disability, rather than unwillingness to work again" (id.).

Here, the claimant failed to establish that his work-related injuries caused him to retire. The claimant testified that he retired "because I couldn't take the driving anymore. I had had a couple of fender benders and, you know, it was just too much for me. Physically too much to keep driving." The claimant's testimony failed to establish that he retired because of the established injuries to his right hip, neck and back, and not because of other factors, such as his age. Moreover, there is no medical evidence, or any other evidence or testimony to corroborate the claimant's testimony as there are no medical reports in the case file from 2011 until 2014, after the claimant retired. The claimant acknowledged during his testimony that he alone decided to retire, no doctor advised him to retire, and the claimant retired with a regular, and not a disability pension. Furthermore, the claimant was 69 years old at the time of his retirement, and he had been collecting social security income for three years before he stopped working full-time. Although the claimant testified he wanted to work until he was about 75 years old, there is nothing to support his testimony.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant voluntarily retired from the labor market.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed April 12, 2016, is MODIFIED to find that claimant voluntarily removed himself from the labor market when he retired. The case is continued for development of the record concerning reattachment to the labor market.