Third Department Decisions 6-6-13

Today the Appellate Division decided two cases dealing with workers compensation.

In Matter of Ballou, the carrier appealed a decision finding that claimant had involuntarily retired.Claimant worked for the employer for more than 26 years as a mechanic rebuilding engines and fuel systems on heavy diesel equipment. In February 2010, while tightening a leaking hose clamp on a cooling system, the hose broke free and sprayed claimant with scalding hot water, causing second degree burns to his face, ear, neck, chest and stomach. Attempting to get away, claimant tripped and fell, tearing a muscle in his arm and striking his head. Due to his various injuries, including a diagnosis of post-concussion syndrome, claimant was unable to return to work until May 2010. After returning to work with restrictions, claimant felt that he could no longer safely perform his duties, and he retired that same month. Claimant then sought workers compensation benefits. Contending that claimant s retirement was a voluntary withdrawal from the labor market, the employer and its workers compensation carrier (hereinafter collectively referred to as the carrier) controverted the claim. The Workers Compensation Board established the claim and awarded continuing benefits.

Whether a retirement or withdrawal from the labor market is voluntary is a factual determination to be made by the Board, and its decision will be upheld when supported by substantial evidence (see Matter of Griffin v Town of Dewitt, 100 AD3d 1129, 1129 [2012]; Matter of Richardson v Schenectady City School Dist., 96 AD3d 1335, 1335 [2012]). Here, the Board found that claimant credibly testified that he returned to work but was having problems with concentration and memory, which caused him difficulty with reassembling engines. Claimant therefore decided to retire because he was afraid that either he or someone else might be injured as a result. Claimant testified further that when he returned to work, the employer would not allow him to reconnect engines, and his supervisor was told to watch over claimant to make sure he did not hurt himself. Moreover, the employer s notice of retirement stated that claimant would be rehired with some reservation due to risk of injury. Finally, claimant s treating neurologist opined that he was unable to return to his regular work due to symptoms from his head injury and that, despite continued treatment, his condition had not significantly improved. Accordingly, substantial evidence supports the Board s determination that claimant s disability contributed to his decision to retire and, thus, it was not voluntary (see Matter of Griffin v Town of Dewitt, 100 AD3d at 1129-1130). As the Court of Appeals held in Matter of Zamora v New York Neurologic Assoc. (19 NY3d 186 [2012]), when a finding is made that a claimant has involuntarily withdrawn from the labor market, the Board may draw an inference that his or her reduced future earnings resulted from the disability. While causation may be inferred, the inference does not rise to the level of a presumption in the claimant s favor. Here, claimant offered direct evidence to establish that his disability was the cause of his continuing reduced earnings, and the carrier failed to come forward with controverting evidence. As the determination to award claimant continuing benefits was based on a factual finding of causation, we find no violation of the holding in Zamora. Nor do we find any merit to the carrier s claim that Zamora requires the Board to make a distinction between temporary and permanent disabilities when determining whether a retirement is voluntary or involuntary (see e.g. Matter of Fallon v Syracuse City School Dist., 77 AD3d 997, 998-999 [2010]).

In Matter of Schroeder, special funds appealed a finding which ruled that Workers Compensation Law § 25-a was applicable to claimant s award of workers compensation benefits. In March 2003, claimant suffered a work-related injury to his back and was awarded workers compensation benefits. Claimant returned to work the following month and the case was subsequently closed. Claimant continued to work for the employer and received symptomatic medical treatment for his work-related injury through his retirement in 2009. In August 2010, the employer sought to shift liability for the claim to the Special Fund for Reopened Cases pursuant to Workers Compensation Law § 25-a. At a hearing, the Special Fund sought further development of the record, which did not include either an affidavit or testimony by claimant with respect to whether claimant had received any advance payments from his employer that could prevent the shifting of liability to the Special Fund. The Workers Compensation Law Judge denied the request and determined that the last compensation payment was made in April 2003 and that liability shifted to the Special Fund as of August 2010. On review, the Workers Compensation Board affirmed, finding that there was no evidentiary basis for the Special Fund s argument that advance payments may have been made.

The Court reversed. They noted that Workers Compensation Law § 25-a provides for the transfer of liability to the Special Fund when an application to reopen a closed case is made more than seven years from the date of injury and more than three years after the last payment of compensation (Matter of McLean v Amsterdam Nursing Home, 72 AD3d 1309, 1310 [2010]; see Workers Compensation Law § 25-a [1]; Matter of Iannaci v Independent Cement Corp., 66 AD3d 1194, 1195 [2009]).

Advance payments that are made voluntarily during the relevant time frame, in recognition of an employer s liability, are considered compensation and will prevent the shifting of liability to the Special Fund (see Matter of McLean v Amsterdam Nursing Home, 72 AD3d at 1310; Matter of Fuentes v New York City Hous. Auth., 53 AD3d 873, 874 [2008]). Notably, evidence that a claimant received full wages despite performing limited or light duties may result in a finding that advance payments [of compensation] have been made (Matter of Guidice v Herald Co., 88 AD3d 1175, 1176-1177 [2011] [internal quotation marks and citation omitted]). Whether an advance payment of compensation was made to the claimant is a factual issue for the Board to resolve and, its determination . . . , if supported by substantial evidence in the record as a whole, will not be disturbed (id. at 1176; see Matter of Stranahan v Camp Adirondack, 78 AD3d 1369, 1370 [2010]).

The Court went on to explain how the Board misapplied the law stating, the Board s reliance on Matter of Brock v Great A & P Tea Co. (84 AD2d 645 [1981]) was misplaced. There, the employer conceded that [the] claimant was paid for lost time within three years of the application to reopen with knowledge that the lost time was a result of the . . . injury (id. at 646). We then held that payments made through a sick-leave plan or accumulated sick-leave are not advance payments of compensation within the meaning of Workers Compensation Law $ 25-a (id.; see McLean v Amsterdam Nursing Home, 72 AD3d at 1311). The Board here correctly noted that the record does not indicate that claimant was paid for lost time; indeed, this argument was never advanced by the Special Fund. The Board, however, failed to address the issue that was raised by the Special Fund and addressed herein, namely, whether claimant worked restricted or lighter duties while receiving full compensation from the employer, which would constitute advanced payments under Workers Compensation Law $ 25-a (see Matter of Guidice v Herald Co., 88 AD3d at 1177;

Matter of Iannaci v Independent Cement Corp., 66 AD3d at 1196). The Court further noted that the record contains numerous progress reports from claimant s chiropractor indicating that, from December 2005 until his retirement in March 2009, claimant worked for the employer but was disabled from regular duty. Claimant did not testify or submit an affidavit, and the record is otherwise silent regarding whether he performed lighter duties and, if so, whether he received full wages; in the absence of any proof . . . the Board could not assess whether an advance payment was made for the purposes of determining the applicability of Workers Compensation Law $ 25-a (Matter of Iannaci v Independent Cement Corp., 66 AD3d at 1196). Thus, the Board s decision is not supported by substantial evidence and, accordingly, we must remit the matter for further development of the record with respect to this issue(see Matter of Guidice v Herald Co., 88 AD3d at 1177; Matter of Iannaci v Independent Cement Corp., 66 AD3d at 1196) The decision was reversed.

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