| Matter of Phillips v Plainville Turkey Farms, Inc. |
| 2007 NY Slip Op 08797 [45 AD3d 1061] |
| November 15, 2007 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Ellen Phillips, Respondent, vPlainville Turkey Farms, Inc., et al., Appellants, and Special Fund for Reopened Cases,Respondent. Workers' Compensation Board, Respondent. |
—[*1] Steven Licht, Special Funds Conservation Committee, Albany (Jill B. Waldman of counsel),for Special Fund for Reopened Cases, respondent. Andrew M. Cuomo, Attorney General, New York City (Estelle Kraushar of counsel), forWorkers' Compensation Board, respondent.
Rose, J. Appeal from a decision of the Workers' Compensation Board, filed August 19, 2005,which, among other things, ruled that Workers' Compensation Law § 25-a wasinapplicable to claimant's workers' compensation claim.
In June 1997, claimant sought treatment for pain in her right arm, shoulder and neck and[*2]numbness in the fingers of her right hand. Claimant'scondition was diagnosed as calcific tendinitis in her right shoulder, it was causally related to heremployment and she underwent surgery to repair her rotator cuff in September 1997. Claimantreturned to work in February 1998, and was assigned to duties less physically demanding. TheWorkers' Compensation Board established the claim for an occupational disease to the rightshoulder and claimant was awarded lost time benefits for various periods between June 1997 andFebruary 1998. This determination was modified to include claimant's neck and arm, and awardswere made to include claimant's recovery time after a carpal tunnel release was performed inJune 1999. The case was closed in October 1999, with the date of disablement established asMay 19, 1997.
From October 1999 until December 2002, claimant continued to follow up with physicians,complaining of worsening conditions. During this time, claimant was advised that further surgerywould not improve her condition, her partial disability was permanent and she should stopworking. Claimant retired in December 2002. In March 2003, claimant was diagnosed with anadditional rotator cuff tear and chronic shoulder pain. In May 2004, the employer's workers'compensation carrier notified the Board that the Special Fund for Reopened Cases (hereinafterFund) was responsible for any further medical payments, pursuant to Workers' CompensationLaw § 25-a. In March 2005, a Workers' Compensation Law Judge (hereinafter WCLJ) heldthat claimant had not voluntarily removed herself from the labor force and that Workers'Compensation Law § 25-a did not apply. The employer now appeals from the Board'saffirmance of that decision.
The employer initially contends that claimant voluntarily retired. We disagree. "Retirement isnot voluntary if a compensable permanent partial disability was a factor that contributed to aclaimant's decision to retire" (Matter ofBryant v New York City Tr. Auth., 31 AD3d 936, 937 [2006] [citations omitted]; see Matter of Price v Hudson CorrectionalFacility, 24 AD3d 820, 821 [2005]). Moreover, the issue of whether a retirement wasvoluntary is a factual determination for the Board, which will be upheld provided it is supportedby substantial evidence, even if there was evidence presented that would support a contrary result(see Matter of O'Dell v ConsolidatedEdison, 34 AD3d 1137, 1138 [2006]; Matter of Bryant v New York City Tr.Auth., 31 AD3d at 937-938). Here, the Board's determination that claimant's retirement wasnot voluntary is supported by substantial evidence in that claimant was advised both in May 2000and March 2001, by different physicians, that she would not be able to continue working due toher condition and that she should apply for disability retirement.
The employer also contends that Workers' Compensation Law § 25-a is applicable,making the Fund liable for further compensation. Liability rests with the Fund if a case isreopened more than seven years after the date of injury and three years following the lastpayment for compensation (see Workers' Compensation Law § 25-a [1]). The issuehere is whether this case was reopened within seven years of claimant's May 1997 injury. TheBoard determined that medical reports from 2002 and 2003 constituted a reopening of the case."A medical report that gives the Board sufficient notice of a change in a claimant's medicalcondition may be deemed an application to reopen a case" (Matter of Hantz v Brightman Agency, 29 AD3d 1098, 1099-1100[2006] [citations omitted]; see Matter of Jones v HSBC, 304 AD2d 864, 866 [2003]).The medical reports from 2002 and 2003 make reference to such changes in claimant's diagnosesas a new rotator cuff tear and chronic pain syndrome. They note also that claimant's conditionhad become permanent, further surgery was no longer a viable option and she had to stopworking. Under these circumstances, we conclude that substantial evidence supports the Board'sdetermination that this case was reopened within seven years of claimant's 1997 injury [*3]and, as such, it will not be disturbed (see Matter of Davis vMadden Constr. Co., 295 AD2d 826, 828 [2002]; Matter of Dumont v Nestle Co.,286 AD2d 804, 805 [2001]).
Crew III, J.P., Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the decision isaffirmed, without costs.