                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 30, 2015                    519766
________________________________

In the Matter of the Claim of
   THOMAS W. HUNTER,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
TOWN OF HEMPSTEAD et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   March 27, 2015

Before:   Garry, J.P., Egan Jr., Lynch and Clark, JJ.

                             __________


      Alan W. Clark & Associates, Levittown (Brandon Clark of
counsel), for appellant.

      Steven M. Licht, Special Funds Conservation Committee,
Albany (Jill Singer of counsel), for Special Fund for Reopened
Cases, respondent.

                             __________


Egan Jr., J.

      Appeal from a decision of the Workers' Compensation Board,
filed April 25, 2014, which ruled, among other things, that
claimant voluntarily removed himself from the labor market.

      Claimant, a sanitation worker, sustained a work-related
back injury in 1996 and was awarded workers' compensation
benefits. Claimant returned to work later that year, and a
finding of permanency was not made. In 2005, liability for the
claim was shifted to the Special Fund for Reopened Cases. In the
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interim, claimant obtained workers' compensation benefits as the
result of other injuries to both knees, his left foot and his
right shoulder, and all of those claims were resolved via
schedule loss of use awards. In 2010, claimant retired after 32
years of service, crediting his decision to the various work-
related injuries he had sustained, and thereafter sought an award
of postretirement benefits, arguing that the 1996 injury had left
him unable to work. The Workers' Compensation Board ultimately
disagreed and found, among other things, that claimant's
retirement was unrelated to the 1996 injury and constituted a
voluntary withdrawal from the work force. Claimant now appeals.

      We affirm. "Whether a retirement or withdrawal from the
labor market is voluntary is a factual determination to be made
by the Board, and its decision will be upheld when supported by
substantial evidence" (Matter of Ballou v Southworth-Milton,
Inc., 107 AD3d 1084, 1085 [2013] [citations omitted]; see Matter
of Goldstein v Prudential, 117 AD3d 1368, 1369-1370 [2014]). A
variety of medical evidence in the record reflects that the 1996
injury was responsible for only a mild or moderate disability
that did not impair claimant's ability to work. Claimant himself
testified that he was able to work despite the constraints placed
upon him by the 1996 back injury, noting that his knee problems
caused him far more difficulty. Indeed, claimant stopped working
immediately before he underwent a second knee replacement and was
advised that he would not be able to return to employment as a
result of that surgery. Further evidence that claimant's
retirement resulted from his knee problems, and not the 1996 back
injury, is provided by a 2010 report by claimant's treating
chiropractor stating that claimant was "disabled due to work
injury to his knees." In short, substantial evidence supports
the determination of the Board that claimant's 1996 injury played
no role in his decision to retire (see Matter of Goldstein v
Prudential, 117 AD3d at 1369-1370; Matter of Resto v New York
City Housing Auth., 14 AD3d 741, 741-742 [2005]; Matter of
Sanders v Nyack Hosp., 277 AD2d 829, 830 [2000]). Under these
circumstances, the fact that an orthopedist found the 1996 injury
to be totally disabling after claimant's retirement did not
compel a different result or entitle him to ongoing benefits
(see Matter of Bacci v Staten Is. Univ. Hosp., 32 AD3d 582, 584
[2006]; Matter of Sanders v Nyack Hosp., 277 AD2d at 830).
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Claimant's remaining contentions have been considered and found
to be unavailing.

     Garry, J.P., Lynch and Clark, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
