When Does Retirement Constitute Voluntary Withdrawal From the Labor Market?

Joseph Melchionne
Joseph Melchionne, Esq.

If a claimant in a New York State Workers’ Compensation case is receiving workers’ compensation benefits for a partial disability (whether permanent or temporary) that claimant has a persistent obligation to actively search for work that is within his or her medical restrictions as dictated by the doctors who are treating him or her. In other words, the claimant has to demonstrate an attachment to the labor market.  If the claimant has voluntarily withdrawn from the work force and cannot demonstrate an attachment to the labor market his or her benefits can been terminated or suspended.

The burden of proof regarding this defense rests upon the employer to show that the claimant receiving benefits has voluntarily withdrawn from the labor market.  To do so, the employer must compel the claimant to :

  • Demonstrate that they have looked for work in many places within their restrictions; and
  • Provide documentary evidence of an active participation in at least one New York State Department of Labor re-employment service as defined by case law.

Recent Case Law Addressing Voluntary Withdrawal From Labor Market

Recently, the New York Appellate Division decided a Workers’ Compensation case that involved the issue of whether or not retiring from one’s employment constituted a voluntary withdrawal from the labor market. See Greco-Meyer, Michele v. Nassau County Police Department, decided on May 19, 2016 (App. Div. 2016).

In Greco-Meyer, the Appellate Division heard an appeal from the New York State Workers’ Compensation Board  which found that the claimant had voluntarily removed herself from the labor market following her retirement from a police department. See Greco-Meyer,  (App. Div. 2016) at 2.

The facts of the case are a follows: The claimant was a police officer who suffered work-related injuries on October 12, 2006 when she tripped on a rug at work and fell injuring her left foot, left knee, and back. Id. The claim was established by the New York State Workers’ Compensation Board for work related injuries to the previously referenced body parts. Id. Following her accident, the claimant continued to work for the police department on a restricted basis and never returned to work full-duty as a result of her causally related injuries. Id.  In 2012, the claimant took a regular service retirement and soon thereafter discovered that she was suffering from breast cancer. Id.

After the claimant’s retirement, the Workers’ Compensation Board ruled that she did not voluntarily remove herself from the labor market by retiring and that she was entitled to permanent partial disability payments. Id. However, a Workers’ Compensation Board Panel reviewed the decision of the Law Judge and determined that the claimant’s retirement from her job was voluntary and was not caused by her causally related disability. Id. Therefore, the Law Judge’s prior decision was modified accordingly. Id.

On appeal, the Appellate Division affirmed the decision of the Workers’ Compensation Board and found that according to the facts of the case there was an absence of persuasive evidence in the record that the claimant’s disability cause or contributed to her decision to retire. Id.

Court’s Ruling Regarding Voluntary Retirement

According to the Court: “Generally, a claimant who voluntarily withdraws from the labor market by retiring is not entitled to workers’ compensation benefits unless the claimant’s disability caused or contributed to the retirement.” See Matter of Lombardi v. Brooklyn Union Gas Co., 306 AD2d 704, 705 (2003).  However, whether the claimant has voluntarily removed from the labor market by retiring is a factual issue for the Board to resolve and its decision will be upheld if supported by substantial evidence. See Matter of Schiizzo v. Citibank NA-Banking, 128 AD3d 1293, 1293-1294 (2015).

According to the Court in Greco-Meyer, there was a distinct lack of evidence in the record that the claimant’s disability caused or contributed to her decision to retire. See Greco-Meyer,  (App. Div. 2016) at 2.  According to medical evidence contained in the record, the claimant’s disability was considered to be a moderate, partial disability that prevented her from working full-time at full-duty, but did not prevent her from working full-time with restrictions. Id. Another medical professional who was treating the claimant at the time of her retirement, testified that he thought that the claimant retired as a result of her breast cancer surgery and not as a result of her work related disability. Id. at 3. In addition, the claimant herself did not testify that her work related disability contributed to her decision to retire. Id. Further, the Court determined that the record reflected that after satisfying the age and service requirements required to for a regular retirement and the service requirements necessary to qualify for a pension, the claimant just decided to retire. Id.

Therefore, the Court held that there was substantial evidence supporting the Board’s decision that the claimant had voluntarily withdrew from the labor market and was not entitled to continued benefits as a result. Id.

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Joseph Melchionne is an associate attorney at Lois LLC where he defends employers and carriers in New York workers’ compensation claims. Joseph can be reached directly at jmelchionne@loisllc.com or 201-880-7213.