From Casetext: Smarter Legal Research

Matter of Acunzo v. Newsday, Inc.

Appellate Division of the Supreme Court of New York, Third Department
May 12, 1988
140 A.D.2d 817 (N.Y. App. Div. 1988)

Opinion

May 12, 1988

Appeal from the Workers' Compensation Board.


Claimant, a district circulation manager for Newsday, Inc., injured his back on April 8, 1981 while unloading 50-pound packets of newspapers from a delivery truck. He received medical attention and was paid, voluntarily, by the employer pending his return to work on May 4, 1981. On September 30, 1982, claimant retired and thereupon filed for unemployment insurance benefits, apparently on the basis that his back injury forced him to leave his employment. However, benefits were denied on the ground that claimant left his employment for "non-compelling" reasons.

Claimant then applied for workers' compensation benefits contending that his back injury was the cause of his retirement. A Workers' Compensation Law Judge awarded benefits by decision dated November 23, 1983, finding that claimant's retirement was based in part on his injury. The employer appealed to the Workers' Compensation Board (hereinafter the Board) arguing, inter alia, that the decision in the unemployment insurance proceeding collaterally estopped any consideration of whether claimant retired because of his injury. The appeal to the Board resulted in referral to an impartial specialist to determine if claimant's injury disabled him at the time of retirement; thereafter, the Board found that the injury had contributed at least in part to claimant's retirement and was continuing, and set the case down for making awards. Awards were made and the case returned to the Board, which, due to certain factual misapprehensions by the impartial specialist, restored the matter to the Trial Calendar by decision dated January 20, 1987 and May 4, 1987 for further development of the record as to causal relationship of disability and retirement. The Board found, however, on the issue of collateral estoppel, that the unemployment insurance proceeding dealt with whether claimant's injury required retirement, not whether it was a factor in his retirement. This appeal by the employer ensued.

We agree with the contention of the Board that the appeal must be dismissed since its decision was nonfinal and thus nonappealable (see, Matter of Michalko v City of New York, 39 A.D.2d 979).

In workers' compensation proceedings, an appeal will be dismissed if it neither disposes of all substantive issues nor involves a threshold legal issue which may be dispositive (see, Matter of Harris v Carborundum Co., 72 A.D.2d 869; Matter of McDowell v La Voy, 59 A.D.2d 995). Here, the case was sent back for testimony as to disability and its relation to retirement, a substantive issue. Collateral estoppel as a threshold legal issue does not dictate a contrary conclusion, for it seems clear to us that the issue is not dispositive. Even if it were found conclusive as to claimant's retirement, claimant could still be awarded workers' compensation benefits following retirement if it were found that, although claimant's retirement was not causally related to his injury, the injury impacted on claimant's desire to work after he had retired. This is due to the fact that a claimant may recover benefits, even if he retires for reasons other than his disability, if the disability adversely effects postretirement earnings (see, Matter of Yamonaco v Union Carbide Corp., 42 A.D.2d 1014; Matter of Fey v Republic Aviation Corp., 6 A.D.2d 928, lv denied 5 N.Y.2d 707).

Appeal dismissed, without costs. Mahoney, P.J., Kane, Casey, Levine and Mercure, JJ., concur.


Summaries of

Matter of Acunzo v. Newsday, Inc.

Appellate Division of the Supreme Court of New York, Third Department
May 12, 1988
140 A.D.2d 817 (N.Y. App. Div. 1988)
Case details for

Matter of Acunzo v. Newsday, Inc.

Case Details

Full title:In the Matter of the Claim of ANTHONY ACUNZO, Respondent, v. NEWSDAY…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: May 12, 1988

Citations

140 A.D.2d 817 (N.Y. App. Div. 1988)

Citing Cases

Claim of Sons-Brown v. Oas Hills Dining Hall

Accordingly, it affirmed the award, prompting this appeal by the carrier. That the neck injury sustained in…

Matter of Salerno v. Newsday Inc.

On the employer's appeal, the Workers' Compensation Board affirmed the establishment of ODNCR, rescinded as…