State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 30, 2015 519766 

________________________________

In the Matter of the Claim of 

THOMAS W. HUNTER,

Appellant,

v

MEMORANDUM AND ORDER

TOWN OF HEMPSTEAD et al.,

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: March 27, 2015

Before: Garry, J.P., Egan Jr., Lynch and Clark, JJ.

__________

Alan W. Clark & Associates, Levittown (Brandon Clark of

counsel), for appellant.

Steven M. Licht, Special Funds Conservation Committee,

Albany (Jill Singer of counsel), for Special Fund for Reopened

Cases, respondent.

__________

Egan Jr., J.

Appeal from a decision of the Workers' Compensation Board,

filed April 25, 2014, which ruled, among other things, that

claimant voluntarily removed himself from the labor market.

Claimant, a sanitation worker, sustained a work-related

back injury in 1996 and was awarded workers' compensation

benefits. Claimant returned to work later that year, and a

finding of permanency was not made. In 2005, liability for the

claim was shifted to the Special Fund for Reopened Cases. In the
-2- 519766 

interim, claimant obtained workers' compensation benefits as the

result of other injuries to both knees, his left foot and his

right shoulder, and all of those claims were resolved via

schedule loss of use awards. In 2010, claimant retired after 32

years of service, crediting his decision to the various workrelated injuries he had sustained, and thereafter sought an award

of postretirement benefits, arguing that the 1996 injury had left

him unable to work. The Workers' Compensation Board ultimately

disagreed and found, among other things, that claimant's

retirement was unrelated to the 1996 injury and constituted a

voluntary withdrawal from the work force. Claimant now appeals.

We affirm. "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" (Matter of Ballou v Southworth-Milton,

Inc., 107 AD3d 1084, 1085 [2013] [citations omitted]; see Matter

of Goldstein v Prudential, 117 AD3d 1368, 1369-1370 [2014]). A

variety of medical evidence in the record reflects that the 1996

injury was responsible for only a mild or moderate disability

that did not impair claimant's ability to work. Claimant himself

testified that he was able to work despite the constraints placed

upon him by the 1996 back injury, noting that his knee problems

caused him far more difficulty. Indeed, claimant stopped working

immediately before he underwent a second knee replacement and was

advised that he would not be able to return to employment as a

result of that surgery. Further evidence that claimant's

retirement resulted from his knee problems, and not the 1996 back

injury, is provided by a 2010 report by claimant's treating

chiropractor stating that claimant was "disabled due to work

injury to his knees." In short, substantial evidence supports

the determination of the Board that claimant's 1996 injury played

no role in his decision to retire (see Matter of Goldstein v

Prudential, 117 AD3d at 1369-1370; Matter of Resto v New York

City Housing Auth., 14 AD3d 741, 741-742 [2005]; Matter of

Sanders v Nyack Hosp., 277 AD2d 829, 830 [2000]). Under these

circumstances, the fact that an orthopedist found the 1996 injury

to be totally disabling after claimant's retirement did not

compel a different result or entitle him to ongoing benefits

(see Matter of Bacci v Staten Is. Univ. Hosp., 32 AD3d 582, 584

[2006]; Matter of Sanders v Nyack Hosp., 277 AD2d at 830). 
-3- 519766 

Claimant's remaining contentions have been considered and found

to be unavailing.

Garry, J.P., Lynch and Clark, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court