Connell v. Consolidated Edison Co. of New York, Inc.

Appellate Division of the Supreme Court of New York

Connell v. Consolidated Edison Co. of New York, Inc.

49 A.D.3d 1055, 857 N.Y.2d 240

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 20, 2008

StatusPublished

Cited by3 cases

This text of 49 A.D.3d 1055 (Connell v. Consolidated Edison Co. of New York, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Connell v. Consolidated Edison Co. of New York, Inc., 49 A.D.3d 1055, 857 N.Y.2d 240 (N.Y. Ct. App. 2008).

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Opinion

Kane, J.

Claimant sustained a compensable injury to his back, hip and ankle in 2001 that was ultimately found to be a permanent partial disability. In October 2002, claimant returned to work after back' surgery, restricted to light duty with limited lifting. [1056]*1056Claimant went out of work again in October 2003 and was cleared to return to light duty one month later. At approximately the same time, however, claimant notified the employer he was retiring, effective February 2004. A Workers’ Compensation Law Judge found that claimant voluntarily retired from the labor market for 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 factual determination for the Board which will be upheld if supported by substantial evidence, even if there is evidence supporting a contrary result (see Matter of Phillips v Plainville Turkey Farms, Inc., 45 AD3d 1061, 1062 [2007]; Matter of O’Dell v Consolidated Edison, 34 AD3d 1137, 1138 [2006]). Here, medical testimony indicated that claimant was cleared to work with restrictions at the time of his retirement and evidence was presented that such employment was offered claimant. Claimant also was not advised to retire from light-duty employment and did not apply for a disability pension, but instead retired with a full unreduced pension right after reaching the qualifying age. Although claimant presented evidence to the contrary, the Board’s determination that he voluntarily withdrew from the labor market is supported by substantial evidence and must be upheld (see Matter of West v Niagara Mohawk Power Corp., 29 AD3d 1251, 1252 [2006]; Matter of Stagnitta v Consolidated Edison Co. of N.Y., 24 AD3d 1099, 1100-1101 [2005]).

Peters, J.P., Carpinello, Kavanagh and Stein, JJ., concur. Ordered that the decision is affirmed, without costs.

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Kane, J.

Claimant sustained a compensable injury to his back, hip and ankle in 2001 that was ultimately found to be a permanent partial disability. In October 2002, claimant returned to work after back' surgery, restricted to light duty with limited lifting. [1056]*1056Claimant went out of work again in October 2003 and was cleared to return to light duty one month later. At approximately the same time, however, claimant notified the employer he was retiring, effective February 2004. A Workers’ Compensation Law Judge found that claimant voluntarily retired from the labor market for 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 factual determination for the Board which will be upheld if supported by substantial evidence, even if there is evidence supporting a contrary result (see Matter of Phillips v Plainville Turkey Farms, Inc., 45 AD3d 1061, 1062 [2007]; Matter of O’Dell v Consolidated Edison, 34 AD3d 1137, 1138 [2006]). Here, medical testimony indicated that claimant was cleared to work with restrictions at the time of his retirement and evidence was presented that such employment was offered claimant. Claimant also was not advised to retire from light-duty employment and did not apply for a disability pension, but instead retired with a full unreduced pension right after reaching the qualifying age. Although claimant presented evidence to the contrary, the Board’s determination that he voluntarily withdrew from the labor market is supported by substantial evidence and must be upheld (see Matter of West v Niagara Mohawk Power Corp., 29 AD3d 1251, 1252 [2006]; Matter of Stagnitta v Consolidated Edison Co. of N.Y., 24 AD3d 1099, 1100-1101 [2005]).

Peters, J.P., Carpinello, Kavanagh and Stein, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

49 A.D.3d 1055, 857 N.Y.2d 240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/connell-v-consolidated-edison-co-of-new-york-inc-nyappdiv-2008.

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