Opinion
92236
May 22, 2003.
Appeal from a decision of the Workers' Compensation Board, filed August 31, 2001, which ruled that claimant had voluntarily withdrawn from the labor market.
Freedman, Wagner, Tabakman Weiss (David M. Wagner of counsel), for appellant.
Gwendolyn Winston Parris, State Insurance Fund, New York City, for State Insurance Fund, respondent.
Before: Cardona, P.J., Crew III, Peters, Rose and Kane, JJ.
MEMORANDUM AND ORDER
Claimant sustained a work-related back injury in February 1999. Claimant, then 62 years old, returned to work on March 10, 1999, but retired the next day and subsequently began receiving social security retirement benefits. At a hearing before a Workers' Compensation Law Judge (hereinafter WCLJ), claimant testified that he had planned to retire at age 65 and then seek part-time work to supplement his social security benefits. The employer and its workers' compensation carrier objected to payment of workers' compensation benefits after claimant's 65th birthday, contending that claimant had voluntarily withdrawn from the labor market. The WCLJ determined that claimant was permanently partially disabled and had not voluntarily withdrawn from the labor market. Upon review, the Workers' Compensation Board reversed, finding that claimant was not totally disabled from all work and that his failure to seek other work constituted a voluntary withdrawal from the labor market. Claimant appeals.
Initially, we reject the contention of the employer and its carrier that claimant's appeal was untimely. Workers' Compensation Law § 23 requires an appeal from a Board decision to be filed within 30 days after notice of the decision has been served upon the parties. While claimant's notice of appeal was not received by the Board until October 2, 2001, more than 30 days after the Board decision was filed, there is no proof in the record as to when the Board decision was served on claimant (see Matter of Buchanon v. Adirondack Steel Casting Co., 175 A.D.2d 971; cf. Matter of Flynn v. Managed Care, Inc., 302 A.D.2d 696, 697, 754 N.Y.S.2d 586, 587).
Turning to the merits, substantial evidence supports the Board's factual determination that claimant voluntarily withdrew from the labor market (see Matter of Coneys v. New York City Dept. of Mental Health, 299 A.D.2d 602, 602-603; Matter of Gotthardt v. Aide Inc. Design Studios, 291 A.D.2d 587, 588, lv denied 98 N.Y.2d 605;Matter of Camarda v. New York Tel., 262 A.D.2d 816, 816). Although the parties' medical experts presented conflicting evidence regarding the extent of claimant's disability, the WCLJ acted within his discretion when he found that claimant is only partially disabled (see Matter of Kramer v. Ultra Blend Corp., 297 A.D.2d 890, lv denied 99 N.Y.2d 506; Matter of Estate of Matusko v. Kennedy Valve Mfg. Co., 296 A.D.2d 726, 728, lv denied 99 N.Y.2d 504. Claimant testified that he has not sought work of any kind since his retirement and, thus, there is no evidence that his disability contributed to his inability to obtain employment (see Matter of Yamonaco v. Union Carbide Corp., 42 A.D.2d 1014, 1015). Accordingly, the Board's decision must be affirmed.
Cardona, P.J., Crew III, Peters and Kane, JJ., concur.
ORDERED that the decision is affirmed, without costs.