A Workers' Compensation Claimant, a police officer and a union representative tripped and fell in February 2021 on his way to internal affairs to represent another police officer and subsequently established a workers' compensation claim for injuries to his left shoulder, neck and back. Claimant continued to work until October 12, 2021, was released to return to work on December 21, 2021 and thereafter opted for a normal service retirement with approximately 34 years of service, effective December 30, 2021.
Claimant subsequently raised the issue of involuntary retirement as a result of the February 2021 established injuries. A Workers' Compensation Law Judge [WCLJ] found, among other things, that Claimant involuntarily retired from his employment. The Workers' Compensation Board modified the WCLJ's decision, finding that Claimant submitted insufficient credible evidence to show that his retirement was an involuntary withdrawal related to the disability for injuries stemming from the February 2021 accident. The Board then rescinded, among other things, any awards for the period subsequent to December 2021. Claimant appealed the Board's determination.
Citing Matter of Rivera v Joseph L. Balkan, Inc., 193 AD3d 1214, the Appellate Division affirmed the Board's ruling, noting that "Generally, a claimant who voluntarily withdraws from the labor market by retiring is not entitled to workers' compensation benefits unless the claimant's disability caused or contributed to the retirement". Further, opined the court, "the Board, which is the sole arbiter of credibility, is vested with resolving the factual issue of whether there has been a voluntary withdrawal, and its determination will not be disturbed if supported by substantial evidence."
The Appellate Division explained that in determining that Claimant did not provide sufficient evidence establishing that he involuntarily retired.
Significantly, the medical reports from Claimant's orthopedic surgeon submitted for the current claim specifically note that Claimant denied any prior neck injury, nor did they include any evaluation of whether the current disability purportedly leading to his retirement bore any relation to the prior permanent partial disabilities. Nor was there any indication that Claimant, although the medical reports state that Claimant is disabled from his employment as a police officer, discussed with the orthopedic surgeon that, although still a police officer, he was engaged in an administrative, light-duty capacity as a union representative and has not carried a firearm since at least 2005.
Deferring to the Board's credibility determinations, and considering other elements in Claimant's medical records, the Appellate Division concluded "substantial evidence supports the Board's determination that the evidence submitted was insufficient to establish that [Claimant's] retirement was an involuntary withdrawal related to a disability from the February 2021 injuries."
Click HERE to access the Appellate Division's decision posted on the Internet.
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