If the WCB determines the individual involuntarily withdraw from the workforce, it cannot require a claimant to seek work within medical limitations

If the WCB determines the individual involuntarily withdraw from the workforce, it cannot require a claimant to seek work within medical limitations Matter of Funke v Eastern Suffolk BOCES, 2011 NY Slip Op 00144, Appellate Division, Third Department Sandra R. Funke, a former teacher's assistant for special needs students, sustained a work-related injury to her neck, back and shoulder. She was awarded workers' compensation benefits and returned to work. Subsequently she amended her claim to include consequential posttraumatic stress disorder and was awarded appropriate benefits. She retired March 2009, but continued to work sporadically for the employer as a substitute teacher's assistant. The Workers' Compensation Board ultimately denied her application for postretirement benefits. While the Board said that Funke's retirement was involuntary – that is, causally related to her disability – it then concluded that her subsequent loss of earnings was due to unrelated factors not caused by her disability. The Appellate Division disagreed with the Board's action. First the court said that it has "long held that a retirement is an involuntary withdrawal if the claimant's disability caused or contributed to the decision to retire." As the Board credited Funke's testimony that she retired due to pain caused by her disability, that testimony provides substantial evidence to support the Board's initial finding that "claimant's retirement was causally related as she was not able to continue working in the same capacity for the employer" – i.e., that her retirement was involuntary." That being the case, said the Appellate Division, "an inference arises that . . . earning capacity is reduced by the disability and claimant is [therefore] entitled to compensation until the inference is removed from the case." Further, noted the court, once "the withdrawal [is] found to be involuntary, . . . it become[s] inherently inconsistent to hold that a claimant is obligated to search for work within medical limitations." However, notes the decision, the failure to seek additional work does not defeat the inference that arises upon a finding of involuntary retirement or constitute proof that something other than the disability is the cause of a claimant's reduced earnings, referring to Burns v Town of Colonie, 66 AD3d at 1070, among other decisions. Reversing the Board's ruling, the Appellate Division remitted the matter to the Workers' Compensation Board "for further proceedings not inconsistent with this Court's decision." The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00144.htm

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