Applicant for Workers' Compensation benefits continued to
work on restricted duty as a union representative in an administrative capacity
until he opted to take a normal service retirement effective
The Appellate Division denied Applicant's challenge to the Board's decision. In affirming, the court explained "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" and "Although the absence of evidence of medical advice to retire may be a relevant factor in determining whether a particular claimant's retirement constituted a voluntary withdrawal from the labor market, medical advice to retire is not ... an essential element for a finding that a claimant's compensable injury played a role in the decision to retire".
Decided and Entered:
CV-23-1524
[*1]In the Matter of the Claim of John T. Carroll, Appellant,
v
Nassau County Police Department et al., Respondents. Workers' Compensation
Board, Respondent.
Calendar Date:
Before:Pritzker, J.P., Lynch, Ceresia, Fisher
and Mackey, JJ.
Fusco, Brandenstein & Rada, PC, Woodbury (Jesse A. Sigismonti
of counsel), for appellant.
Vecchione, Vecchione, Connors & Cano, LLP,
Fisher, J.
Appeal from a decision of the Workers' Compensation Board, filed
In March 2009, claimant, a police officer and union
representative, injured his back and left knee while making an arrest, and
resultantly underwent a spinal surgery (laminectomy and discectomy) on May 4,
2010. He returned to work in 2011 on restricted administrative duty, and later
that year resumed the full-time duties of a police officer until July 2019,
when he was again put on restricted duty. Claimant continued to work on
restricted duty as a union representative in an administrative capacity until
he opted to take a normal service retirement effective
A hearing was held at which claimant testified, explaining his
restricted light job duties and that he had retired involuntarily due to the
ongoing and worsening back pain and symptoms that he experienced while
performing those duties, notwithstanding the employer's accommodation of his
back condition, and on the advice of his treating orthopedic surgeon. Claimant
further testified that his position required sitting approximately five to six
hours per day and worsened his symptoms, and that taking breaks or standing to alleviate
his pain was not always feasible. The commanding officer of the medical
administration office also testified regarding claimant's administrative
duties, stating that he was permitted to stand and stretch to alleviate his
symptoms and that there was no time limitation on how long he could remain on
restricted duty status. Deposition testimony and medical records and reports
were submitted in support of claimant's back injury. Specifically, claimant's
treating orthopedic surgeon, who began treating claimant in February 2019,
testified that claimant had a progressively worsening disability of 33.3% in
February 2019 that, as of August 2020, left him 75% disabled. The orthopedist
diagnosed claimant with multi-level spinal compression, lumbar stenosis, disc
degeneration and radiculopathy, and further testified that retirement had been
necessary because claimant's restricted job duties involved sitting and
sedentary work, which were "very difficult" and provoked his back
symptoms. Based on this, the orthopedist opined that claimant could only
tolerate part-time sedentary work, he could not sit for full days and that he
should not sit for more than one hour at a time. Claimant's pain management
specialist examined him six or seven times between January and November 2020,
and found — based upon these examinations, the treating orthopedist's
disability calculation, an MRI report and claimant's complaints — that he had a
mild/moderate disability of 33.3% and that his condition had stabilized, noting
that he had never [*2]advised claimant to retire.
The employer and its workers' compensation carrier procured an
independent medical examination of claimant that was performed eight months
after his retirement in January 2021, by an orthopedic surgeon (hereinafter the
carrier's consultant) who reviewed his medical records and submitted a report;
the report recommended continuing physical therapy but did not offer an opinion
regarding claimant's degree of disability, ability to perform his restricted
job duties with accommodations at the time of his retirement or whether
retirement was medically advised. The report recorded claimant's ongoing
complaints of low back pain, pain radiating down his right leg and pain in his
mid-back to the right buttocks and posterior thigh and lateral leg numbness and
tingling, and included a diagnosis of right side sciatica and postoperative
status. The carrier's consultant, who conceded that he had no recollection of
the examination, later testified and, adopting the content of his report, opined
that claimant had a moderate to marked disability, had limited range of motion
with pain, had not reached maximum medical improvement and that he should
continue physical therapy and avoid repetitive lifting and prolonged standing,
walking and stair climbing.
A Workers' Compensation Law Judge (hereinafter WCLJ) found that
although claimant had not been forced by the employer to retire and the
employer had attempted to accommodate his condition, even his modified duties
were too painful and, accordingly, he had involuntarily retired primarily due
to his disability that resulted from the 2009 injury. The WCLJ held in abeyance
an award for lost wages from claimant's May 14, 2020 retirement until December
7, 2020, pending further review of medical records, and made an award of
continuing lost wage payments at a 50% temporary partial disability rate for
the period of December 7, 2020 through December 30, 2022 (the day after the
final hearing). On administrative appeal, the Workers' Compensation Board modified
the WCLJ's decision, concluding that claimant's disability did not prevent him
from performing his light duty assignment with accommodations, and that he had
voluntarily retired. The Board rescinded the award of lost wages and replaced
it with a finding of no compensable lost time. Claimant appeals.
We affirm. "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"
(Matter of Losquadro v Nassau County Police Dept., 225
AD3d 1083, 1084 [3d Dept 2024] [internal quotation marks and citations
omitted]; accord Matter of Digbasanis v Pelham Bay Donuts Inc.,
224 AD3d 1047, 1048-1049 [3d Dept 2024]; Matter of Vankoevering v New York State Canal Corp., 211
AD3d 1301, 1302 [3d Dept 2022]). "Although the absence of evidence of
medical advice to retire may be a relevant factor in determining whether a
particular [*3]claimant's retirement constituted a voluntary
withdrawal from the labor market, medical advice to retire is not . . . an
essential element for a finding that a claimant's compensable injury played a
role in the decision to retire" (Matter of Evans v Jewish Home &
Hosp., 289 AD2d 795, 796 [3d Dept 2001] [internal citations omitted]), but
there must "be some evidence that the claimant's disability caused or
contributed to the retirement" (Matter of Vankoevering v New York State
Canal Corp., 211 AD3d at 1302 [internal quotation marks, brackets and
citations omitted]). "Whether a retirement or withdrawal from the labor
market is voluntary is a factual determination to be made by the Board" (Matter of Rivera v Joseph L. Balkan, Inc., 193 AD3d 1214,
1215 [3d
In finding that claimant had voluntarily retired, the Board
credited the opinions of claimant's pain management specialist that he had a
33.3% disability and the carrier's consultant that he had a moderate to marked
disability over that of his treating orthopedist that his disability level
progressively increased to 75% around the time of his retirement and required
that he retire, an assessment made without an awareness of the accommodations being
made in his light duty assignment. The Board noted that claimant had been able
to work full time as a police officer for years after his 2010 surgery and was
able to tolerate the restricted duty assignment that began in 2019, in which he
was permitted to stand, walk and stretch as needed without repercussions,
finding no persuasive evidence that he was having difficulty performing those
duties before he retired. Contrary to claimant's argument, the Board, not the
WCLJ, "is the sole arbiter of witness credibility" and "has the
exclusive province to resolve conflicting medical opinions and to evaluate
medical evidence before it" and "was not bound by the WCLJ's
determinations" (Matter of Ghaffour v New York State Black Car
Operators, 224 AD3d 1021, 1023 [3d Dept 2024] [internal quotation marks,
brackets and citations omitted]). Although the WCLJ credited claimant's
testimony and the treating orthopedist's finding that the light duty work was
too painful and that retirement was necessary in concluding that he had
involuntarily retired, the Board was entitled to draw different inferences and
discount that conclusion based upon the other medical evidence and testimony
and the orthopedist's concession that he was unaware that claimant was
permitted [*4]to take breaks to move, stand and stretch
as needed, which would alleviate his symptoms caused by prolonged periods of
sitting.
We discern no error in the Board's conclusion that this case more
closely resembles the facts in Employer: County of Nassau Civil Service
II (2022 WL 18359761, 2022 NY Wrk Comp LEXIS 6972 [WCB No. G296 5754,
Pritzker, J.P., Lynch, Ceresia and Mackey, JJ., concur.
ORDERED that the decision is affirmed, without costs.