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Workers' Compensation Board

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Case # G0813802
Date of Accident: 03/13/2014
District Office: NYC
Employer: Nassau Regional Off-Track Betting
Carrier: Granite State Insurance Co
Carrier ID No.: W098008
Carrier Case No.: 555127920
Date of Filing of Decision: 07/20/2017
Claimant's Attorney: Pasternack Tilker Ziegler Walsh Stanton & Romano LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on June 20, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed September 8, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant voluntarily withdrew from the labor market when she retired, and thereafter, if she maintained an attachment to the labor market.

The Workers' Compensation Law Judge (WCLJ) concluded that the claimant involuntarily withdrew from the labor market and maintained an attachment to the labor market thereafter, entitling her to continuing awards.

The Board Panel majority modified the decision of the WCLJ, concluding that the claimant voluntarily retired as of May 15, 2015, and rescinded ongoing awards.

The dissenting Board Panel would find that the claimant's retirement from her employment was involuntary, and would find that claimant is entitled to an inference of causally related lost time subsequent to May 15, 2015.

The claimant filed an application for Mandatory Full Board Review on October 7, 2016, arguing that she retired early due to her work-related injury as evidenced by the fact that the incentive retirement she took was financially disadvantageous to her.

The carrier filed a rebuttal on November 4, 2016, arguing that the claimant failed to demonstrate that her retirement was due in part to her causally related disability, pointing out that none of her doctors advised her to retire due to her established back injury. The carrier also contends that the partially disabled claimant was also required to demonstrate an attachment to the labor market after she retired, yet failed to do so.

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

FACTS

This case is established for a work-related injury to the claimant's back that occurred on March 13, 2014. The claimant returned to work following her work-related injury, but accepted an incentive retirement from the employer that became effective on May 15, 2015.

On May 12, 2015, claimant's treating physician, Dr. Cardinale, examined the claimant and diagnosed herniated nucleus pulposus in her lumber spine and lumbar radiculopathy. Dr. Cardinale noted that the claimant was still working regular duty. Dr. Cardinale recommended a lumbar epidural steroid injection.

Dr. Cardinale examined claimant again on May 22, 2015, and noted in his report that claimant was retired. Dr. Cardinale did not offer an opinion on the issue of degree of causally related disability.

On June 29, 2015, claimant's treating physician, Dr. Goldstein, conducted a medical examination of the claimant. Dr. Goldstein diagnosed the claimant with lumbar radiculopathy, myalgia and myositis, bulging disc, trigger point with back pain, lumbar spinal stenosis, facet arthritis of lumbar region, lumbago, and herniated nucleus pulposus. Dr. Goldstein found that the claimant was partially disabled.

On July 16, 2015, claimant's treating physician, Dr. Grossman, conducted a medical examination of the claimant. Dr. Grossman diagnosed claimant with lumbar radiculopathy and herniated nucleus pulposus in her lumbar spine. Dr. Grossman opined that a discectomy would significantly relieve claimant's pain, and found that claimant could not go back to work, but provided no opinion on degree of disability.

On August 10, 2015, Dr. Goldstein conducted a medical examination of the claimant. Dr. Goldstein diagnosed claimant with lumbar radiculopathy, myalgia and myositis, bulging disc, trigger point with back pain, lumbar spinal stenosis, facet arthritis of lumbar region, lumbago, and herniated nucleus pulposus. Dr. Goldstein found that claimant was totally disabled and could not return to work.

On October 8, 2015, claimant's treating physician, Dr. Petrizzo, conducted a medical examination of the claimant. Dr. Petrizzo diagnosed claimant with intervertebral disc disorders with radiculopathy of the lumbar region and opined that claimant was 100% disabled. Dr. Petrizzo stated that claimant "stopped working on 5/15/2015 and was 'forced' to retire."

On October 21, 2015, carrier's medical consultant, Dr. Gorski, conducted an independent medical examination of the claimant. Based on his examination, and his review of claimant's medical record, Dr. Gorski diagnosed claimant with a right sided herniated disc at L4-L5 with radiculitis, opined that claimant had a 33% mild to moderate degree of disability, and indicated that she might be a candidate for micro endoscopic discectomy.

At a hearing held on January 8, 2016, the claimant and the employer's witness testified.

The claimant testified that she continued to work after her March of 2014 work-related accident, separating from work on May 15, 2015. Claimant continued treating with her medical providers and received epidural injection in the period between her date of accident and her separation from employment. After her accident, she struggled with her job duties as she was limping and had a burning sensation that required her to sit periodically. She had particular problems with lifting. She kept her doctors informed of her issues at work and they suggested work restrictions. Those work restrictions were not followed by the employer. However, she continued to work because she is a homeowner that has bills to pay. Leading up to the date of her retirement, her condition was getting worse. She was offered an incentive retirement in late April 2016, which she accepted within two to three weeks. She could not recall whether she had a discussion with a treating physician as to whether she should accept the employer's retirement offer. If she continued to work, and delayed her retirement, her pension benefits would have been greater. The claimant testified that her husband lost health insurance coverage when she accepted the employer's retirement package. She wouldn't have left her employment had she not been hurt. On re-direct, the claimant indicated that she just had surgery and has several work restrictions, but has not searched for work within those restrictions. The claimant indicated that "she had an FMLA." Her attorney subsequently clarified that the claimant was in the process of submitting a Family and Medical Leave Act (FMLA) application to the employer in March 2015.

On cross-examination, the claimant testified that she resigned from her employment with the employer as part of the acceptance of the incentive retirement package. The claimant voluntarily accepted a regular, as opposed to a disability, retirement package. The claimant admitted that she has not looked for work since retiring.

The employer's General Counsel and Corporate Secretary testified that the company was having some financial difficulty, and that it offered an early retirement incentive to all employees 55 and older that had at least ten years of service. The claimant was offered an incentive retirement as she met this criteria, and she accepted.

On cross-examination, the witness indicated that he did not know why the claimant took the early retirement incentive. He did not know if the claimant's work-related injury was the impetus for accepting retirement incentive.

At the conclusion of the hearing, the WCLJ found claimant's retirement to be involuntary, made awards to the claimant, and awarded the claimant's attorney a fee in the amount of $1,000.00. The carrier noted its objection to all of the WCLJ's findings. The findings and awards made at the January 8, 2016, hearing are reflected in a decision filed on January 13, 2016.

The carrier requested administrative review of the WCLJ decision.

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.).

Here, the record contains no evidence that the claimant intended to retire before the compensable injury occurred. The claimant testified that her injuries were the primary factor in her decision to retire and take the severance package offered by her employer. The claimant credibly asserted that, but for her compensable injuries, she would not have chosen to retire at that time. Significantly, there is no competent evidence in the record to the contrary, with regard to the claimant's decision to retire as of May 15, 2015.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant's retirement from her employment was involuntary and, consequently, she was entitled to the inference of causally related lost time subsequent to her retirement date of May 15, 2015.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed January 13, 2016, is AFFIRMED. No further action is planned by the Board at this time.