Determining if a workers' compensation benefit claimant is eligible for a reduced earnings award

In 2008 a claimant [Appellant] for workers' compensation benefits established his eligibility for benefits as a result of a work-related injury. In September 2017, Appellant retired and claimed that his retirement was, at least in part, due to his 2008 injury. The employer contested Appellant's claim for benefits, contending that Appellant's retirement was voluntary and not causally related to his disability.

Ultimately a Workers' Compensation Law Judge [WCLJ] found that Appellant's retirement was not due to his compensable disability, but that Appellant "had reattached himself to the labor market by obtaining part-time employment in November 2018. The WCLJ directed Appellantto produce records of his wages in order to determine his possible eligibility for "a reduced earningsclaim."* The employer appealed the WCLJ's ruling.

The Workers' Compensation Board [Board] modified the WCLJ's decision, finding that the record "was devoid of any credible evidence of a nexus between work-related back injury" and Appellant'salleged reduced earnings and thus he was not entitled to a reduced earnings award. 

The Board also rejected Appellant'srebuttal to the employer's appeal, in which he argued that his retirement was involuntary. The Board rejected the rebuttal on the grounds Appellant failed to file a timely appeal from the WCLJ's decision.

The Appellate Division sustained the Board's ruling, explaining:

1. A claimant who has voluntarily retired, but claims to have later "reattached to the labor market," has the burden of demonstrating "that his or her earning capacity and his or her ability to secure comparable employment has been adversely affected by his or her compensable disability";

2. The claimant may satisfy this burden by showing that the adverse effect on his or her earning capacity was not caused by factors totally unrelated to his or her disability"; and

3. The issue of whether a claimant's reduced earnings are causally related to the work-related injury "is a factual one for the Board to resolve, and its findings will not be disturbed [by the court] if supported by substantial evidence."

The Appellate Division opined that "[t]he credited evidence established that [Appellant] worked for the employer for more than nine years following his 2008  injury and that his decision to retire in 2017 "was influenced by economic factors, including a retirement incentive package offered by the employer."

Although Appellant claimed that his disability restricted the types of positions available to him after his voluntary retirement, the Appellate Division held that Appellant's claim was undermined by the fact that he was able to perform his required administrative work for many years after sustaining his work-related injury. Under the circumstances, the court found that Appellant's voluntary retirement has a "significant bearing" upon his claim to entitlement to a reduced earnings award, and ruled that there was no error in the Board's consideration of these factors.

Finding substantial evidence existed in the record to support the Board's decision, the Appellate Division held that "there is no basis upon which to disturb it."

*  In the event a claimant's post-injury wages are less that the claimant's pre-injury wages due to the claimant's workplace injury or illness, New York's workers' compensation law permits payments not to exceed two-thirds of the difference to eligible claimants.

Click here to access the full text of the Appellate Division's decision.

 

Executive Order addressing preventing and combating discrimination on the basis of gender identity or sexual orientation issued

On January 20, 2021, the President of the United States, Joseph R. Biden Jr., issued a number of Executive Orders including an Executive Order stating that that gay and transgender people are protected against discrimination by Title VII of the Civil Rights Act of 1964. Title VII prohibits unlawful discrimination “because of sex.”

The Order states that "This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person."

Click here to access this Executive Order.

Courts apply the substantial evidence standard when considering a challenge to the penalty imposed following a disciplinary action

A police detective [Plaintiff] was terminated from his position after being found guilty of possessing and ingesting methamphetamine. The Appellate Division found that there was substantial evidence in the record supporting the finding that Petitioner possessed and ingested methamphetamine.

Noting that "[T]hree samples of hair from [Plaintiff's] [leg] were subjected to repeated testing by independent laboratories and yielded positive results," the court opined that to the extent there were conflicting expert opinions as to the efficacy of drug testing using hair, as well as character witness testimony tending to show that petitioner did not use drugs, "courts may not weigh the evidence or reject the choice made" by the hearing officer to accept or reject particular testimony.

As to the penalty imposed, dismissal from his position, the Appellate Division said it found "no grounds" to vacate the penalty as "[t]he [appointing authority's] dismissal of a police officer for using illegal drugs is not so disproportionate to the offense as to be shocking to one's sense of fairness."

Rejecting Petitioner's contention that the employer "failed to apply the preponderance of the evidence standard," the Appellate Division observed that its review "is limited to a consideration of whether [the penalty imposed] was supported by substantial evidence upon the whole record," citing 300 Gramatan Ave. Assoc., 45 NY2d at 181.

Click here to access the text of the Appellate Division's decision