                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: May 19, 2016                       521801
________________________________

In the Matter of the Claim of
   MICHELE GRECO-MEYER,
                    Appellant,
      v                                      MEMORANDUM AND ORDER

NASSAU COUNTY POLICE DEPARTMENT
   et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   April 18, 2016

Before:    Lahtinen, J.P., McCarthy, Garry, Rose and Aarons, JJ.

                              __________


     John F. Clennan, Ronkonkoma, for appellant.

      Vecchione Vecchione & Connors LLP, Garden City Park (Brian
M. Anson of counsel), for Nassau County Police Department and
another, respondents.

                              __________


Rose, J.

      Appeal from a decision of the Workers' Compensation Board,
filed December 26, 2014, which ruled that claimant's removal from
the labor market was voluntary.

      Claimant, a police officer, sustained injuries when she
fell after tripping on a rug at work on October 12, 2006. She
filed a claim for workers' compensation benefits and her case was
established for causally-related injuries to her left foot, left
knee and back. Claimant did not return to full duty as a police
                              -2-                521801

officer after the accident and instead continued working on a
restricted basis. In February 2012, she took a regular service
retirement and, shortly thereafter, she was diagnosed with breast
cancer. Following claimant's retirement, further proceedings
were conducted in her workers' compensation case and a Workers'
Compensation Law Judge ruled, among other things, that she did
not voluntarily remove herself from the labor market by retiring
and was entitled to payments for permanent partial disability
subsequent to the date of her retirement. The Workers'
Compensation Board, however, concluded that the claimant's
retirement was voluntary and was not precipitated by her
causally-related disability. The Board modified the Workers'
Compensation Law Judge's decision accordingly and claimant now
appeals.

      "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" (Matter of Lombardi v Brooklyn Union Gas Co.,
306 AD2d 704, 705 [2003] [citation omitted]; see Matter of Bury v
Great Neck UFSD, 14 AD3d 786, 787 [2005]). Whether there has
been a voluntary withdrawal is a factual issue for the Board to
resolve and its decision will be upheld if supported by
substantial evidence (see Matter of Schirizzo v Citibank NA-
Banking, 128 AD3d 1293, 1293-1294 [2015]; Matter of Hunter v Town
of Hempstead, 127 AD3d 1539, 1539 [2015]).

      Here, there is an absence of persuasive evidence in the
record that claimant's disability caused or contributed to her
decision to retire. Michael Miller, an orthopedist who conducted
an independent medical examination of claimant and evaluated her
in September 2011 and again in May 2013, testified that claimant
had a permanent moderate partial disability that prevented her
from performing her duties as police officer, but did not prevent
her from working full time with certain restrictions.
Significantly, however, he did not evaluate her at the time that
she retired and provided no information as to what may have
prompted her decision.

      Enrico Mango, the orthopedist who treated claimant after
the accident and for many years thereafter, testified that
                              -3-                  521801

claimant had a permanent partial disability and was unable to
return to full duty as a police officer after the accident, but
worked for a number of years on a restricted basis. Although he
continued to treat claimant at the time of her retirement, his
testimony was equivocal concerning the reason she retired. He
stated that he "thought" that claimant retired because of her
breast surgery and did not indicate that her work-related
disability was a contributing factor.

      Likewise, claimant did not state that her work-related
disability was a reason for her retirement. Although she
considered Mango's warning that continuing to work was
detrimental to her back and knee, she did not indicate that she
retired upon his advice or that of any other physician. In
addition, she did not state that she was no longer able to
perform the duties of her restricted assignment at the time of
her retirement, and there was no medical evidence establishing
that her condition had worsened. Rather, it appears from the
record that, after satisfying the age and service requirements
necessary to qualify for a regular retirement pension, claimant
simply decided that it was time to retire. Accordingly,
substantial evidence supports the Board's decision that claimant
voluntarily withdrew from the labor market, and we decline to
disturb its decision (see Matter of Hunter v Town of Hempstead,
127 AD3d at 1540 [2015]; compare Matter of Schirizzo v Citibank
NA-Banking, 128 AD3d at 1294). We have considered claimant's
remaining arguments and find them to be without merit.

     Lahtinen, J.P., McCarthy, Garry and Aarons, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
