| Matter of LeFever v City of Cortland Fire Dept. |
| 2009 NY Slip Op 06745 [66 AD3d 1061] |
| October 1, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Bradley J. LeFever, Respondent, vCity of Cortland Fire Department et al., Appellants. Workers' Compensation Board,Respondent. |
—[*1] Hinman, Howard & Kattell, L.L.P., Binghamton (Gary C. Tyler of counsel), for Bradley J.LeFever, respondent. Andrew M. Cuomo, Attorney General, New York City (Estelle Kraushar of counsel), forWorkers' Compensation Board, respondent.
Peters, J.P. Appeals (1) from a decision of the Workers' Compensation Board, filed October17, 2007, which, among other things, ruled that claimant did not voluntarily withdraw from thelabor market, and (2) from a decision of said Board, filed August 7, 2008, which denied theemployer and third-party administrator's request for full Board review.
Claimant, a firefighter, suffered a compensable injury to his right elbow in 1999. The claimwas later modified to include a consequential injury to claimant's left upper extremity and elbow,which was ultimately classified as a permanent partial disability in 2005. In the interim, claimanthad stopped working after suffering a cardiac arrest that was unrelated to his work duties. Hiscardiac condition required the implantation of a defibrillator which disqualified claimant fromperforming his work duties, and he accordingly retired in 2003.[*2]
After the left elbow injury was classified as a permanentpartial disability, claimant sought postretirement benefits, arguing that the injury affected hisdecision to retire. The Workers' Compensation Law Judge made such an award. Upon review,the Workers' Compensation Board agreed and the self-insured employer and its third-partyadministrator (hereinafter collectively referred to as the employer) appeal.[FN*]
We affirm. Whether a claimant's retirement constituted a voluntary withdrawal from thelabor market was a factual issue for the Board, and its determination will not be disturbed ifsubstantial evidence in the record supports it (see Matter of Hayes v Nassau County Police Dept., 59 AD3d 831,832 [2009]; Matter of Danussi vChateaugay A.S.A.C.T.C., 56 AD3d 856, 856 [2008]). "Retirement is not voluntary if acompensable permanent partial disability was a factor that contributed to a claimant's decision toretire," even if, as here, a noncompensable condition also played a significant role in thatdecision (Matter of Bryant v New YorkCity Tr. Auth., 31 AD3d 936, 937 [2006] [citations omitted]). Claimant here testifiedthat he was having problems with his left elbow which affected his ability to work prior to hiscardiac arrest, and he successfully applied for performance of duty disability retirement benefitsbased upon both his cardiac condition and arm injuries. In addition, claimant's left elbow injuryhas already required three surgeries and his orthopedic surgeon testified both that additionalsurgery would likely be required and that the condition would progressively worsen over time.As such, the Board's finding that claimant's decision to retire was partially based upon hiscompensable disability is supported by substantial evidence.
We have reviewed the employer's other arguments and, to the extent they are properly beforeus, find them to be without merit.
Spain, Rose, Kane and Stein, JJ., concur. Ordered that the decisions are affirmed, withoutcosts.
Footnote *: The employer also appeals fromthe Board's denial of its application for full Board review, but we deem that appeal to have beenabandoned given the employer's failure to raise any issue with respect to that denial in its brief(see Matter of Jones v GardnerMotors, 45 AD3d 1125, 1125 n [2007]).