Bryant v. New York Transit AuthorityBryant v. New York Transit Authority
Claimant, a bus driver employed by the New York City Transit Authority (hereinafter employer), suffered an apparent seizure and blacked out while driving a bus on November 24, 1999; the bus then struck a tree, causing claimant to suffer numerous physical injuries to his head, face, arms, left hip, left knee, left foot and left wrist. Although claimant‘s apparent seizure prevented his return to work as a bus driver, he retrained for a position cleaning buses. He worked that job for one day, but was unable to continue with it due to his physical injuries. He then applied for, and was granted, disability retirement effective May 18, 2001, at 43 years of age, on the ground that his seizure disorder required him to refrain from operating a bus. Separately, the Workers’ Compensation Board determined that claimant suffered a compensable permanent partial disability due to his physical injuries sustained as a result of the accident. When the employer later raised the issue of voluntary withdrawal from the labor market, a Board panel found that claimant‘s permanent partial disability had contributed to his decision to retire on May 18, 2001 and recognized that this finding “allows an inference that subsequent loss of wages is attributable to the physical limitations.” However, the Board also held that claimant‘s May 13, 2004 testimony that he had not sought work within his physical limitations after his retirement shifted the burden back to him to show that his compensable disability was still a cause of his continued loss of earnings and, since he did not meet this burden, his lost earnings from May 13, 2004 were deemed to be attributable to his failure to seek work. Claimant and the self-insured employer both appeal.
The employer‘s contention that claimant retired because of his noncompensable seizure disorder alone, and not at all due to the compensable physical injuries, is unavailing. Retirement is not voluntary if a compensable permanent partial disability was a factor that contributed to a claimant‘s decision to retire (see Matter of Price v Hudson Correctional Facility, 24 AD3d 820, 821 [2005]; Matter of Yannucci v Consolidated Freightways, 6 AD3d 945, 946 [2004]). Whether a claimant‘s retirement was
The Board erred, however, by then shifting the burden to claimant and requiring him to demonstrate his entitlement to benefits after his retirement. The Board‘s finding of claimant‘s involuntary retirement due to the permanent partial disability gives rise to an inference that his postretirement loss of earnings was due to that disability (see
In view of the Board‘s finding that claimant‘s failure to seek employment after retiring caused his subsequent lost earnings, we emphasize that “[p]roof that the claimant has not sought work postretirement, by itself, does not defeat the inference or shift the burden to claimant to show that the disability was a cause of the reduction [in earnings]” (Matter of Leeber v LILCO, 29 AD3d 1198, 1199 [2006]; accord Matter of Tipping v National Surface Cleaning Mgt. Inc., 29 AD3d 1200 [2006]; Matter of Pepe v City & Suburban, 29 AD3d 1184 [2006]). Thus, the Board erred in disallowing awards to claimant on the ground that, after retiring, he had not sought any employment.
To the extent that the employer contends in the alternative
Mercure, J.P., Carpinello, Mugglin and Kane, JJ., concur.
Ordered that the decision and amended decision are reversed, with costs to claimant, and matter remitted to the Workers’ Compensation Board for further proceedings not inconsistent with this Court‘s decision.