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Workers' Compensation Board

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Case # G1181236
Date of Accident: 01/13/2015
District Office: NYC
Employer: GianFia Corporation
Carrier: Phoenix Insurance Company
Carrier ID No.: W177000
Carrier Case No.: A4N3900
Date of Filing of Decision: 11/20/2017
Claimant's Attorney: Rubin Abramson LLP
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on October 17, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed March 13, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant's retirement constituted a voluntary removal from the labor market.

The Workers' Compensation Law Judge (WCLJ) found that the claimant's retirement was not related to his disability, so his lost time after April 22, 2015, was not compensable.

The Board Panel majority affirmed the WCLJ decision.

The dissenting Board Panel member would find that the claimant's disability contributed to his decision to retire.

The claimant filed an application for Mandatory Full Board Review on March 21, 2017, arguing that the preponderance of the evidence supports a finding that the claimant's retirement was caused in part due to his occupationally related chronic irritative bronchitis, so his lost time after April 22, 2015, is compensable.

The carrier filed a rebuttal on April 7, 2017, arguing that the claimant's lost wages after April 22, 2015, are not related to his disability because he was laid off by the employer.

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

FACTS

This case is established for an occupationally related chronic irritative bronchitis. The average weekly wage for the year before the January 13, 2015, date of disablement was set at $2,412.27. The claimant last worked on April 22, 2015, and the issue of voluntary removal and involuntary retirement were raised during the August 17, 2015, hearing. The record on these issues was developed by way of testimony of the claimant and an employer witness.

During the hearing on September 29, 2016, the claimant testified that he is currently not working, and he has not worked since April 22, 2015. The claimant worked for the employer as an operating engineer for 38 years. The claimant's last job site was the Astoria Power Plant, where he worked for five months. The Astoria Power plant job site involved replacing a concrete lined sewer and storm pipe. At that time the claimant had still been treating with Dr. Gould for his lung condition, and he told the claimant that he should not be in his work environment anymore because those locations were dust laden, wet and windy. The claimant explained that the job involved tearing up asphalt and concrete, as well as moving large amounts of earth, which caused dust to be kicked up constantly. He had difficulty breathing, shortness of breath and uncontrolled coughing during this time. The claimant testified that he decided to stop working on April 22, 2015, solely because of his lung condition, but he could have continued to work if he did not have the lung condition. After he stopped working he received unemployment for three weeks but stopped getting benefits because he realized he was never returning to work. He then applied for his union pension, which would have been bigger had he worked longer. He has not worked since April 22, 2015, and he still treats with Dr. Gould. Dr. Gould advised him to stop working in April 2013, but he kept working another two years because he "enjoyed the work and the camaraderie" (transcript, 9/30/16 hearing, p. 6). He did not have any other lung conditions, and he did not smoke.

On cross-examination, the claimant confirmed that he received a service pension, and he did not apply for a disability pension. He had taken four or five days off from the Astoria job site because of his lung condition. He told his supervisor that his last day was going to be April 22, 2015. The Astoria Power plant project was still ongoing after he left on April 22, 2015. The claimant explained to his supervisor that he could not physically do the job anymore because of his lung problems. After telling him about his plan to retire, the supervisor told the claimant that they had planned on laying him off on the following day. The claimant had no idea that the employer was considering eliminating his position. The claimant admitted that after this meeting he filed for unemployment benefits, which he received for three weeks. The claimant used the layoff paperwork from the employer to support his claim for unemployment benefits. The claimant sought out other jobs while he was collecting unemployment for the three weeks.

During redirect examination, the claimant explained that he is a member of a union, so a layoff just means that he switched job sites, employers or both. In these situations, he would put his name on the union list for reassignment, but he did not put his name on the list because he would have no control over where he gets assigned and he was trying to find a better work environment for his lung condition, but determined that any job he obtained through the union would involve the same environmental conditions.

The employer witness testified that he has been a foreman for the employer for three years. The foreman knew the claimant because he worked on the Astoria project for six or seven months. The foreman confirmed that the claimant would be absent from work now and then, but he did not know it was because of his lungs. The claimant continued to work until the job was nearing completion in April 2015, and the employer reduced its work force from two crews to one crew around that time. Claimant never approached him in April 2015 and told him that he could not work on the project anymore. The foreman confirmed he would be the person the claimant would tell this to. The foreman testified that the claimant is no longer employed by the employer because he was laid off like everyone else after the project ended. The foreman is uncertain exactly how the claimant was laid off, and he did not know the exact end date for the Astoria project.

Review of the Board file shows that Dr. Gould's April 26, 2013, report indicates that the doctor told the claimant he should not return to his usual occupation. Dr. Gould's January 30, 2015, office visit note indicates that he advised the claimant to stop working.

After the record was fully developed, the WCLJ found that the claimant's retirement was voluntary, so his lost time after April 22, 2015, is not compensable. That finding is reflected in a decision filed October 4, 2016. The claimant thereafter filed an application for administrative review.

LEGAL ANALYSIS

Whether a claimant has voluntarily withdrawn from the labor market is a factual issue for the Board to resolve (see Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 [2012]). "'An award of compensation is improper if the sole cause for a claimant's loss of earnings is his or her voluntary withdrawal from the labor market' (Matter of Coneys v New York City Dept. of Mental Health, 299 AD2d 602 [2002] [citation omitted]; see Matter of Singletary v Meloon Foundries, 302 AD2d 652 [2003]). Notably, '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]).

Although the Board is entitled to make its own factual findings and is not bound by the credibility determinations of a WCLJ (see Matter of Ortiz v Five Points Correctional Facility, 307 AD2d 634 [2003]), the credibility determinations of the WCLJ who heard the testimony are entitled to considerable weight (Di Donato v Hartnett, 176 AD2d 1102 [1991]).

Here, the WCLJ who was present when the claimant testified and was able to observe his demeanor, found that his testimony that he advised his supervisor that he was retiring due to his work-related injury before being told he was going to be laid off not to be credible. Claimant's incredible testimony regarding why he stopped working at the Astoria job site likewise undermines the credibility of his testimony that he did not subsequently put his name back on the union list to obtain another job because of his work-related condition.

That claimant's doctor told him to stop working is not dispositive in this case because the claimant ignored this advice for over two years before he stopped working, but instead stopped working only after he was laid-off.

Therefore, the Full Board finds that the preponderance of the evidence supports a finding that the claimant's retirement was not causally related to his workers' compensation claim.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed October 4, 2016, is AFFIRMED. No further action is planned by the Board at this time.