State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 19, 2016 521801 

________________________________

In the Matter of the Claim of

MICHELE GRECO-MEYER,

Appellant,

v MEMORANDUM AND ORDER

NASSAU COUNTY POLICE DEPARTMENT

et al.,

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: April 18, 2016

Before: Lahtinen, J.P., McCarthy, Garry, Rose and Aarons, JJ.

__________

John F. Clennan, Ronkonkoma, for appellant.

Vecchione Vecchione & Connors LLP, Garden City Park (Brian

M. Anson of counsel), for Nassau County Police Department and

another, respondents.

__________

Rose, J.

Appeal from a decision of the Workers' Compensation Board,

filed December 26, 2014, which ruled that claimant's removal from

the labor market was voluntary. 

Claimant, a police officer, sustained injuries when she

fell after tripping on a rug at work on October 12, 2006. She

filed a claim for workers' compensation benefits and her case was

established for causally-related injuries to her left foot, left

knee and back. Claimant did not return to full duty as a police
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officer after the accident and instead continued working on a

restricted basis. In February 2012, she took a regular service

retirement and, shortly thereafter, she was diagnosed with breast

cancer. Following claimant's retirement, further proceedings

were conducted in her workers' compensation case and a Workers'

Compensation Law Judge ruled, among other things, that she did

not voluntarily remove herself from the labor market by retiring

and was entitled to payments for permanent partial disability

subsequent to the date of her retirement. The Workers'

Compensation Board, however, concluded that the claimant's

retirement was voluntary and was not precipitated by her

causally-related disability. The Board modified the Workers'

Compensation Law Judge's decision accordingly and claimant now

appeals.

"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 Lombardi v Brooklyn Union Gas Co.,

306 AD2d 704, 705 [2003] [citation omitted]; see Matter of Bury v

Great Neck UFSD, 14 AD3d 786, 787 [2005]). Whether there has

been a voluntary withdrawal is a factual issue for the Board to

resolve and its decision will be upheld if supported by

substantial evidence (see Matter of Schirizzo v Citibank NABanking, 128 AD3d 1293, 1293-1294 [2015]; Matter of Hunter v Town

of Hempstead, 127 AD3d 1539, 1539 [2015]). 

Here, there is an absence of persuasive evidence in the

record that claimant's disability caused or contributed to her

decision to retire. Michael Miller, an orthopedist who conducted

an independent medical examination of claimant and evaluated her

in September 2011 and again in May 2013, testified that claimant

had a permanent moderate partial disability that prevented her

from performing her duties as police officer, but did not prevent

her from working full time with certain restrictions. 

Significantly, however, he did not evaluate her at the time that

she retired and provided no information as to what may have

prompted her decision.

Enrico Mango, the orthopedist who treated claimant after

the accident and for many years thereafter, testified that
-3- 521801 

claimant had a permanent partial disability and was unable to

return to full duty as a police officer after the accident, but

worked for a number of years on a restricted basis. Although he

continued to treat claimant at the time of her retirement, his

testimony was equivocal concerning the reason she retired. He

stated that he "thought" that claimant retired because of her

breast surgery and did not indicate that her work-related

disability was a contributing factor.

Likewise, claimant did not state that her work-related

disability was a reason for her retirement. Although she

considered Mango's warning that continuing to work was

detrimental to her back and knee, she did not indicate that she

retired upon his advice or that of any other physician. In

addition, she did not state that she was no longer able to

perform the duties of her restricted assignment at the time of

her retirement, and there was no medical evidence establishing

that her condition had worsened. Rather, it appears from the

record that, after satisfying the age and service requirements

necessary to qualify for a regular retirement pension, claimant

simply decided that it was time to retire. Accordingly,

substantial evidence supports the Board's decision that claimant

voluntarily withdrew from the labor market, and we decline to

disturb its decision (see Matter of Hunter v Town of Hempstead,

127 AD3d at 1540 [2015]; compare Matter of Schirizzo v Citibank

NA-Banking, 128 AD3d at 1294). We have considered claimant's

remaining arguments and find them to be without merit.

Lahtinen, J.P., McCarthy, Garry and Aarons, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court