| Matter of Danussi v Chateaugay A.S.A.C.T.C. |
| 2008 NY Slip Op 08382 [56 AD3d 856] |
| November 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Stephen A. Danussi, Appellant, vChateaugay A.S.A.C.T.C. et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Gregory J. Allen, State Insurance Fund, Albany (Edward Obertubbesing of counsel), forChateaugay A.S.A.C.T.C. and another, respondents.
Carpinello, J. Appeal from a decision of the Workers' Compensation Board, filed May 24,2007, which ruled that claimant voluntarily withdrew from the labor market and denied hisapplication for postretirement benefits.
Claimant, a correction officer, sustained a compensable injury to his lower back and right legin August 2002 and filed a claim for benefits. Claimant returned to work without any medicalrestrictions and continued in that capacity until December 2005, when he decided to retire onemonth after attaining his 25th year of service. A hearing regarding claimant's application forpostretirement benefits ensued, at the conclusion of which claimant was classified with apermanent partial disability. The Workers' Compensation Law Judge nonetheless found thatclaimant retired voluntarily and, accordingly, denied his claim for benefits. A panel of theWorkers' Compensation Board affirmed, prompting this appeal.
We affirm. "Whether a claimant's retirement was a voluntary withdrawal from the labormarket is a factual issue to be determined by the Board, and its determination will be upheld if[*2]supported by substantial evidence in the record" (Matter of West v Niagara Mohawk PowerCorp., 29 AD3d 1251, 1252 [2006] [citations omitted]; see Matter of Stagnitta v ConsolidatedEdison Co. of N.Y., 24 AD3d 1099, 1100 [2005])—even if other evidence in therecord could support a contrary result (see Matter of Connell v Consolidated Edison Co. of N.Y., Inc., 49AD3d 1055, 1056 [2008]; Matter ofResto v New York City Hous. Auth., 14 AD3d 741, 742 [2005]). Here, claimantcontinued to work without restriction after sustaining his injury—missing approximatelyfive weeks of work between August 2002 and December 2005—never requested orreceived a modified or light-duty assignment, filed for service (as opposed to disability)retirement, admitted that he did not advise his supervisors that he was retiring due to his backcondition and conceded that although his chiropractor stated that retirement "would probably beeasier on [him]," he was not medically advised to retire. Thus, despite other evidence suggestingthat claimant's injury may have contributed to his decision to retire, we conclude that the Board'sdecision is supported by substantial evidence and, as such, must be upheld (see Matter of Mulligan v Workers'Compensation Bd., 27 AD3d 848, 849 [2006]; Matter of Trank v Consolidated Edison Co. of N.Y., Inc., 17 AD3d801, 801-802 [2005]; Matter of Resto v New York City Hous. Auth., 14 AD3d at741-742).
Cardona, P.J., Peters, Kavanagh and Stein, JJ., concur. Ordered that the decision is affirmed,without costs.