Claim of Cameron v. Carrier Air Conditioning Co.

85 A.D.2d 864 | N.Y. App. Div. | 1981

Appeal from a decision of the Workers’ Compensation Board, filed April 15, 1980, which disallowed a claim for compensation. On July 22, 1975, claimant incurred work-related injuries to his head and neck, but lost no compensable time as a consequence. He continued working until March 1, 1978 when he opted not for disability retirement, but for early retirement at age 62, and thereafter sought workers’ compensation benefits. Á divided board found that claimant.had voluntarily left the labor market and that his disability subsequent to March 1, 1978 was unrelated to the July 22, 1975 accident and, therefore, denied benefits. The board had reason to conclude that financial advantage, not ill health, motivated claimant’s resolve to retire and, therefore, he was ineligible to receive benefits (cf. Matter of Meyers v Bell Aerosystems, 43 AD2d 869). There is evidence that by retiring on March 1, 1978, claimant became eligible for more favorable retirement benefits and that he had announced his intention to retire more than three weeks before his doctor recommended retirement because of his disability. Moreover, the detailed report prepared and submitted by the carrier’s examining physician discloses that claimant’s disability was due to pre-existing spinal osteoarthritis, which had been independently diagnosed as early as 1973. As claimant never requested cross-examination at the hearing when that report was submitted, his objection now to the board’s reliance on it is ill timed. Decision affirmed, without costs. Mahoney, P. J., Sweeney, Casey, Yesawich, Jr., and Herlihy, JJ., concur.