| Matter of Connell v Consolidated Edison Co. of N.Y., Inc. |
| 2008 NY Slip Op 02528 [49 AD3d 1055] |
| March 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of William Connell, Appellant, vConsolidated Edison Company of New York, Inc., et al., Respondents. Workers' CompensationBoard, Respondent. |
—[*1] Vecchione, Vecchione & Connors, New York City (Leonard B. Feld, Jericho, of counsel), forConsolidated Edison Company of New York, Inc. and another, respondents.
Kane, J. Appeal from a decision of the Workers' Compensation Board, filed August 22,2006, which ruled that claimant voluntarily withdrew from the labor market.
Claimant sustained a compensable injury to his back, hip and ankle in 2001 that wasultimately found to be a permanent partial disability. In October 2002, claimant returned to workafter back surgery, restricted to light duty with limited lifting. Claimant went out of work again inOctober 2003 and was cleared to return to light duty one month later. At approximately the sametime, however, claimant notified the employer he was retiring, effective February 2004. AWorkers' Compensation Law Judge found that claimant voluntarily retired from the labor marketfor reasons not related to his disability and denied postretirement workers' compensation benefits.The Workers' Compensation Board affirmed this decision and claimant now appeals.
We affirm. The question of whether a claimant's retirement was voluntary is a factualdetermination for the Board which will be upheld if supported by substantial evidence, even ifthere is evidence supporting a contrary result (see Matter of Phillips v Plainville Turkey Farms, Inc., 45 AD3d1061, 1062 [2007]; Matter ofO'Dell v Consolidated Edison, 34 AD3d 1137, 1138 [2006]). Here, medical testimonyindicated that claimant was cleared to work with restrictions at the time of his retirement andevidence was presented that such employment was offered claimant. Claimant also was notadvised to retire from light-duty employment and did not apply for a disability pension, butinstead retired with a full unreduced pension right after reaching the qualifying age. Althoughclaimant presented evidence to the contrary, the Board's determination that he voluntarilywithdrew from the labor market is supported by substantial evidence and must be upheld (see Matter of West v Niagara MohawkPower Corp., 29 AD3d 1251, 1252 [2006]; Matter of Stagnitta v Consolidated Edison Co. of N.Y., 24 AD3d1099, 1100-1101 [2005]).
Peters, J.P., Carpinello, Kavanagh and Stein, JJ., concur. Ordered that the decision isaffirmed, without costs.