NY Worker’s Failure to Stay in Touch With Employer Results in Finding that Worker Withdrew From Labor Market

Observing that in New York, the issue of voluntary retirement and/or withdrawal from the labor market were factual issues to be determined by the Board, and that the Board had broad discretion in making such findings, a New York appellate court affirmed a decision of a state WCLJ, affirmed by the Board, that an injured worker had voluntarily retired from the labor market and that the retirement was not based on his injury [Matter of Rivera v. Joseph L. Balkan, Inc., 2021 N.Y. App. Div. LEXIS 2320 (3d Dept., Apr. 8, 2021). Noting that the Board had found the worker’s testimony much less credible than the employer’s HR representative, and noting that for considerable periods of time following an exacerbation of the injury, the worker had failed to contract the employer, the appellate court held that it was well within the discretion of the Board to deny the claim for additional benefits.

Background

Claimant, a heavy machine operator for the employer, suffered a work-related injury to his back in March 2017. His claim was established and he was awarded benefits from July 2017 to December 2017 for lost time. He returned to work on December 4, 2017 and stopped working on May 29, 2018, alleging that he had exacerbated his back injury that day. He did not return to work and subsequently sought to amend his claim to include a left shoulder injury.

The employer and its carrier opposed, contending, among other things, that claimant had voluntarily withdrawn from the labor market. Following a hearing, a WCLJ found that claimant failed to demonstrate a causally-related injury to the left shoulder and that he voluntarily withdrew from the labor market. On administrative appeal, the Board affirmed, and claimant’s subsequent application for reconsideration and/or full Board review was denied. Claimant appealed from both of the Board’s decisions.

Withdrawal From Labor Market is Factual Issue

The appellate court noted that 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. Moreover, whether a claimant’s retirement or withdrawal from the labor market was voluntary is a factual determination to be determined by the Board. To that end, said the court, the Board had broad authority to resolve factual issues based on credibility of witnesses and draw any reasonable inference from the evidence in the record.

Testimony Before the WCLJ

The court noted that the employer’s Human Resources represented testified that claimant informed her in late May 2018 that he had exacerbated his back injury. The representative directed claimant to go to a health care facility used by the employer for an evaluation. The facility reported to the employer that claimant was unable to return to work at that time and that he was scheduled for a reevaluation at the facility a few days later.

Claimant, however, did not return to the health care facility for his reevaluation and could not be reached for three weeks, despite efforts by the representative to contact him. The representative testified that the employer considered claimant as a no call/no show employee during this time period. According to the representative, after three weeks, claimant called and informed her that he was not going to return to work for the employer. Sometime later, claimant requested, and was paid, his accrued vacation time. The representative further testified that claimant did not provide the employer with any medical reports indicating that he could no longer work for the employer.

Appellate Court’s Findings

The court further observed that although claimant testified that he never informed the representative that he was quitting and that he believed he still had a job with the employer, the Board found the representative’s testimony to the contrary to be more credible. The court also noted that there were medical reports in the file from claimant’s treating physician indicating that claimant was unable to perform his job duties in the weeks following his May 2018 exacerbation of his back injury. There was no indication in those reports, however, that the physician recommended that claimant retire from his employment. In fact, the physician testified that, in his opinion, claimant had not yet reached MMI and could perform work in some capacity. The court concluded that because substantial evidence supported the Board’s decision that claimant’s departure from his employment was voluntary and not due to a work-related disability, it would not be disturbed.