From the Desk of John H. Snyder November 2019

VOLUNTARY RETIREMENT: QUITTERS NEVER WIN. WINNERS NEVER QUIT.

PRACTICE TIP: When you are faced with a claimant’s retirement, and claim for awards, be certain to investigate the circumstances and reasons for the retirement as securing a voluntary retirement finding provides a defense to awards now and in the future.

In Matter of Figueroa v. Consolidated Edison Co. of N.Y. Inc., 168 A.D.3d 1329, 91 N.Y.S.3d 614 (3d Dept. 2019), the Third Department Appellate Division stated that after a finding of voluntary retirement, it is the claimant’s burden to demonstrate that loss of earnings were not caused by factors totally unrelated to the disability, and the failure to meet that burden prevents awards even with proof of reattachment to the labor market.

The case involved an individual who voluntarily retired from her position as an office assistant after 41 years at age 59. Subsequently, the claimant made attempts to reattach to the labor market in order to receive awards. A Workers’ Compensation Law Judge found that the claimant was reattached to the labor market and entitled to awards. There was also a fraud issue concerning testimony regarding the reasons behind the claimant’s original retirement. The Board Panel rescinded awards noting voluntary retirement as well as a Section 114-a violation. A Full Board found an entitlement to awards noting that although the claimant’s retirement was voluntary, she had demonstrated sufficient reattachment to the labor market for ongoing awards to be generated which would not be disqualified by the Section 114-a violation.

On review, the Third Department noted that the claimant’s burden “requires a claimant to demonstrate other factors totally unrelated to his or her disability did not cause the adverse effect on his or her earning capacity,” citing Pontillo v. Consolidated Edison Co. of N.Y. Inc., 156 A.D.3d 1064, 66 N.Y.3d 576 (3d Dept. 2017). The Court explained the suspension as follows: “Notwithstanding the evidence indicating that the claimant had reattached to the labor market through her contact with One Stop and submission of job applications to various prospective employers, the record fails to contain any evidence establishing that claimant’s disability was a factor in her inability to secure employment.” So, when a claimant has been found voluntarily removed from the labor market, reattachment such as working with a career placement center is not enough for awards. It is the claimant’s burden to show that loss of earnings are causally related to the disability. For a subsequent Board Panel Decision applying Figueroa see, Baldor Specialty Foods, Inc., WCB G2176129 (10/16/19).

If you have a claim involving the issue of voluntary retirement and would like to consult with our office on how best to defend this issue, or if you would like our office to try and achieve a settlement on your behalf, please contact John at 315 732-8661 or any of the attorneys in our office at 607 723-0600. John also has substantial experience in the preparation of Medicare Set-Asides. If you would like a training session on this or any other area of the Workers’ Compensation Law, please do not hesitate to contact our firm.