Farrulla v. Suny at Stony Brook

193 A.D.3d 1206

147 N.Y.S.3d 175

In the Matter of Daphne FARRULLA, Appellant,

v.SUNY AT STONY BROOK et al., Respondents.

Workers’ Compensation Board, Respondent.

530704

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: March 16, 2021

Decided and Entered: April 8, 2021

John F. Clennan, Ronkonkoma, for appellant.

Tanisha S. Edwards, State Insurance Fund, Melville (Katherine Mason–Horowitz of counsel), for SUNY at Stony Brook and another, respondents.

Before: Egan Jr., J.P., Lynch, Aarons, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeals (1) from a decision of the Workers' Compensation Board, filed June 20, 2019, which, among other things, ruled that claimant was not entitled to an award of reduced earnings subsequent to October 31, 2018, and (2) from a decision of said Board, filed August 27, 2019, which denied claimant's application for reconsideration and/or full Board review.

In August 1989, claimant was working as a certified nursing assistant at a public hospital when she sustained injuries while attempting to lift a patient. She filed a claim for workers' compensation benefits and her claim was established for injuries to her back and neck.¹ In January 1996, she had surgery on her lumbar spine. In October 1996, she was classified as permanently partially disabled and was awarded benefits for reduced earnings.²

In 2006, after having been unemployed for approximately 12 years, claimant obtained a clerical position with the Department of Motor Vehicles. In the years that followed, she continued to experience chronic pain in her neck and back for which she received medical treatment. In June 2016, she had surgery on her cervical spine. She returned to work six months later and resumed her regular duties. Following her surgery, she continued to receive medical treatment for her back and neck, and also began to experience problems with balance. In October 2018, claimant, who by then was in her mid 60s, retired from her position.

Thereafter, further proceedings were conducted in claimant's workers' compensation case during which the State Insurance Fund raised the issue of claimant's voluntary withdrawal from the labor market based on her retirement. Following a hearing, the Workers' Compensation Law Judge found that claimant's retirement was not voluntary but was due, at least in part, to her work-related injuries and directed that a reduced earnings award be continued after the date of claimant's retirement. The State Insurance Fund sought review of this decision by the Workers' Compensation Board. In reversing the Workers' Compensation Law Judge's decision, a panel of the Board concluded that claimant failed to demonstrate that her work-related injuries caused or contributed to her retirement and, consequently, she was not entitled to an award of reduced earnings subsequent to her retirement date. Claimant's application for reconsideration and/or full Board review of this decision was subsequently denied by the Board. Claimant appeals from both decisions.³

Initially, "[a] claimant who suffers a permanent partial disability – meaning the claimant is rendered less than totally disabled – ‘may receive a reduced earnings award’ under Workers' Compensation Law § 15(3)(w) if the claimant ‘demonstrates that [his or her] reduced earnings are related to the partial disability’ " ( Matter of O'Donnell v. Erie County, 35 N.Y.3d 14, 19, 124 N.Y.S.3d 12, 146 N.E.3d 1171 [2020], quoting Burns v. Varriale, 9 N.Y.3d 207, 216, 849 N.Y.S.2d 1, 879 N.E.2d 140 [2007] ; see Matter of Delk v. Orange & Rockland, 191 A.D.3d 1067, 1069, 141 N.Y.S.3d 180 [2021] ). Moreover, if the Board determines that a claimant with a permanent partial disability retired from his or her job due to that disability, "an inference that his or her future reduced earnings resulted from the disability may be drawn" ( Matter of Zamora v. New York Neurologic Assoc., 19 N.Y.3d 186, 191, 947 N.Y.S.2d 788, 970 N.E.2d 823 [2012] [internal quotation marks and citation omitted]; see Matter of O'Donnell v. Erie County, 35 N.Y.3d at 20, 124 N.Y.S.3d 12, 146 N.E.3d 1171 ). This is true "regardless of whether [the] claimant has completely retired from the workforce or merely withdrawn from the particular employment in which [he or] she was engaged" ( Matter of Zamora v. New York Neurologic Assoc., 19 N.Y.3d at 191–192, 947 N.Y.S.2d 788, 970 N.E.2d 823 ).

Notwithstanding the foregoing, "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 Lombardi v. Brooklyn Union Gas Co. , 306 A.D.2d 704, 705, 761 N.Y.S.2d 374 [2003] [citation omitted]; see Matter of Greco–Meyer v. Nassau County Police Dept., 139 A.D.3d 1296, 1297, 31 N.Y.S.3d 690 [2016], lv denied 28 N.Y.3d 901, 2016 WL 4691703 [2016] ; Matter of Lombardo v. Otsego County Empls., 125 A.D.3d 1079, 1080, 4 N.Y.S.3d 319 [2015] ). Whether a claimant has voluntarily withdrawn from the labor market is a factual issue for the Board, and its determination will be upheld if supported by substantial evidence (see Matter of Romanko v. New York Univ., 154 A.D.3d 1031, 1032, 61 N.Y.S.3d 729 [2017] ; Matter of Greco–Meyer v. Nassau County Police Dept., 139 A.D.3d at 1297, 31 N.Y.S.3d 690 ).

The record discloses...