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Workers' Compensation Board

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Case # G0729925
Date of Accident: 04/15/2013
District Office: NYC
Employer: HHC Bellevue Hospital Ctr
Carrier: Health & Hospitals Corp. CNY
Carrier ID No.: W843502
Carrier Case No.: 08191312192
Date of Filing of Decision: 11/20/2017
Claimant's Attorney: Finkelstein Meirowitz & Eidlisz 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 February 1, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant's retirement on February 29, 2016, was voluntary or involuntary.

The Workers' Compensation Law Judge (WCLJ) found that the claimant voluntarily retired from the workforce and that her lost wages after February 29, 2016, are unrelated to her workers' compensation injuries.

The Board Panel majority affirmed the WCLJ decision.

The dissenting Board Panel member would reverse, finding that the claimant's retirement was involuntary and would continue the case for development of the record on the issue on labor market attachment after February 29, 2016.

The claimant filed an application for Mandatory Full Board Review on March 3, 2017, arguing that her retirement was involuntary because she stopped working due to increasing pain.

The self-insured employer did not file a timely rebuttal.

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

FACTS

On April 15, 2013, claimant, a registered nurse, was injured when she was kicked in the face and shoulder. The claim was initially established for work-related injuries to the left shoulder, head, left temporomandibular joint (TMJ) dysfunction, back and neck, and later amended to include post-traumatic stress disorder. The claimant has been awarded benefits for lost time from November 22, 2013, to October 14, 2014. The claimant returned to work on October 14, 2014, and she worked until her retirement on February 29, 2016.

Claimant sought further lost wage benefits and the issue of voluntary retirement was raised by the self-insured employer during the July 5, 2016, hearing, and the record on the issue was developed by way of the claimant's testimony.

At a hearing held on August 17, 2016, the claimant testified that she was out of work from April 15, 2013, to October 14, 2014, and after returning to work she retired on February 29, 2016. According to claimant, she retired because of increasing pain which led her to no longer be able to work anymore, and that this was the only reason she retired. With regard to the retirement process, the claimant told the payroll department that she wanted to retire on February 20, 2016, and the payroll department set February 29, 2016, as her last day. She had enough years of service for a regular retirement. The claimant again stated the increasing pain was the only reason that she retired, and that she felt young enough and strong enough to keep working. The claimant confirmed that she had not worked since retiring.

On cross-examination, the claimant admitted that she was not advised to retire by a doctor, but she believed that she would be able to continue working if she did not have increasing pain. On re-direct examination the claimant testified she was still under a doctor's care as of February 29, 2016.

Review of the file shows that the claimant's date of birth is February 9, 1954, which means she filed for her ordinary retirement eleven days after her sixty-second birthday. The claimant's medical records for treatment by Dr. Hedrych on April 7, 2015, October 7, 2015, December 18, 2015, and March 1, 2016, show no significant change in her condition leading up to and shortly after her retirement.

After hearing the claimant's testimony, the WCLJ made a finding that the claimant voluntarily removed herself from the labor market by retiring for reasons unrelated to her work-related injuries. These findings are reflected in a decision filed August 22, 2016. Claimant sought administrative review of the WCLJ decision.

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 her demeanor, found her contention that increasing pain led to her retirement was not credible. The claimant admitted that none of her doctors advised her to retire and that she took an ordinary retirement. That claimant took a regular retirement eleven days after her sixty-second birthday based upon her years of service undermines her claim that her decision to retire was due in part to her workers' compensation injuries. Moreover, the claimant's medical records do not support her assertion that her condition was getting more painful prior to her retirement.

Therefore, the Full Board finds that the preponderance of the evidence supports a finding that the claimant's retirement is not causally related.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed August 22, 2016, is AFFIRMED. No further action is planned by the Board at this time.