| Matter of Hayes v Nassau County Police Dept. |
| 2009 NY Slip Op 01266 [59 AD3d 831] |
| February 19, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Ronald J. Hayes, Appellant, v NassauCounty Police Department et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Law Office of Leonard B. Feld, Jericho (Myles J. Magbitang of counsel), for Nassau CountyPolice Department, respondent. Steven M. Licht, Special Funds Conservation Committee, Albany (Jill Waldman of counsel)for Special Funds Conservation Committee, respondent.
Mercure, J.P. Appeal from a decision of the Workers' Compensation Board, filed October29, 2007, which ruled that claimant voluntarily removed himself from the labor market anddenied his claim for workers' compensation benefits.
Claimant retired from employment as a police officer on July 5, 2002. Prior to his retirement,he was involved in two work-related car accidents—in 1991 and 2000. He receivedbenefits, which were awarded in separate workers' compensation cases, related to injuriessustained in those accidents. In December 2001, while the 2000 claim was still pending, the 1991workers' compensation claim was reopened to consider the need for [*2]further treatment.[FN*]During the ensuing hearing, Peter Lesniewski, claimant's treating orthopedic surgeon, testifiedregarding claimant's need for surgery and his physical condition from 1993 through April 2003.A laminectomy requested by Lesniewski was authorized, and claimant had the surgery in 2003.
Claimant subsequently sought compensation for lost time from work and a hearing was held,in the context of both the 1991 and 2000 cases, to determine whether claimant voluntarilywithdrew from the labor force when he retired. At the hearing, claimant's attorney specificallyrequested that the Workers' Compensation Law Judge (hereinafter WCLJ) consider Lesniewski'stestimony regarding the need for surgery as evidence of claimant's involuntary retirement.Ultimately, the WCLJ determined that claimant's withdrawal from the labor force was notvoluntary. The Workers' Compensation Board reversed, noting that claimant's attorney had madearguments relying on Lesniewski's testimony, but stating that "the record does not containtestimony of the claimant's doctor." Upon claimant's appeal, we now reverse.
If the Board's factual determination that claimant's retirement was voluntary—i.e, thatclaimant's work-related injury did not cause or contribute to his decision to retire—issupported by substantial evidence, it will be upheld (see Matter of Connell v Consolidated Edison Co. of N.Y., Inc., 49AD3d 1055, 1056 [2008]; Matterof West v Niagara Mohawk Power Corp., 29 AD3d 1251, 1252 [2006]; Matter of Price v Hudson CorrectionalFacility, 24 AD3d 820, 821-822 [2005]; Matter of Stagnitta v Consolidated Edison Co. of N.Y., 24 AD3d1099, 1100 [2005]). The Board's decision "cannot be sustained, however, 'when it is clearlybased on incorrect facts or an inaccurate reading of the record' " (Matter of Lopez v Superflex, Ltd., 31AD3d 914, 914 [2006], quoting Matter of Evans v Jewish Home & Hosp., 1 AD3d 736, 738[2003], lv dismissed 2 NY3d 823 [2004]).
Here, the Board erred in failing to review the testimony of claimant's doctor, Lesniewski.The parties agree that the record did contain Lesniewski's testimony, and we note that thetestimony is part of the record on appeal and was considered by the WCLJ. Although thattestimony was given to support claimant's need for surgery, claimant also expressly relied uponit at the subsequent hearing to determine whether his withdrawal from the workforce wasvoluntary. Contrary to the employer's arguments, we cannot find this error harmless becauseLesniewski's testimony is relevant. Even though he did not advise claimant to retire or directlyaddress claimant's decision to retire, Lesniewski offered opinions regarding claimant's conditionimmediately prior to retirement and his ability to perform his job. Inasmuch as this Court is notempowered to weigh the evidence in workers' compensation cases, we are not able to surmisewhat decision the Board would have reached had it not overlooked Lesniewski's testimony (see Matter of LaFlamme v S.S. Elec.Repair Shop, Inc., 12 AD3d 732, 733 [2004]; see also Matter of Coscia vAssociation for the Advancement of Blind & Retarded, 273 AD2d 719 [2000]).
We are unpersuaded, however, by claimant's assertion that the Board's failure to considerLesniewski's testimony should result in reversal and reinstatement of the WCLJ's determinationbecause the testimony was previously credited when claimant's surgery was authorized. Here, theissue to be determined—whether claimant's medical condition impacted [*3]his decision to retire—is distinct from the Board's previousdecision that claimant required surgery. Accordingly, we must remit and permit the Board toreconsider the voluntariness of claimant's retirement in light of Lesniewski's testimony (seeMatter of Lopez v Superflex, Ltd., 31 AD3d at 915-916; Matter of Mangum v National Union Fire Ins. Co., 14 AD3d 968,970-971 [2005]).
Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the decision is reversed, withcosts, and matter remitted to the Workers' Compensation Board for further proceedings notinconsistent with this Court's decision.
Footnote *: Liability pursuant to thereopened 1991 claim ultimately was transferred to the Special Fund for Reopened Cases(see Workers' Compensation Law § 25-a).