In a recent Workers’ Compensation Decision, the Board, in denying benefits to a claimant,  agreed with the position asserted by Sobel Pevzner, LLC that the claimant, a highly compensated employee of the firm’s Energy client, voluntarily retired from his job.   The decision came following the successful trial of the matter conducted by Bella Pevzner, Esq., Partner in the firm.


Claimant, a longtime security worker with the firm’s client suffered a compensable work-related injury in 2015 and the claim was initially accepted by the self-insured employer.  At the time of his work-related injury, the employer had already accommodated claimant with a light duty position because claimant had a prior non-work-related injury in 2011 that prevented him from working full duty.  Claimant underwent medical treatment for his 2015 injury for approximately six months before retiring from his job.  Claimant alleged that he was forced to retire due to his disability that resulted from his 2015 work injury.  Upon retirement, claimant began receiving a pension from his employer and requested ongoing Workers’ Compensation indemnity benefits on the grounds of involuntary retirement due to claimant’s work-related injury.


At a trial on the issue of claimant’s voluntary v. involuntary retirement, claimant testified that he was unable to return to work due to his disability and claimed that the employer did not have a light duty position available.  On cross-examination, claimant revealed that he was not advised by his treating physicians to retire from his job and that claimant never contacted the employer regarding his return to work.


Claimant’s supervisor testified at trial that claimant’s job at the time of his work injury was a light duty position and that the employer held claimant’s position open while claimant was out of work receiving indemnity benefits.  It was also established that the claimant never contacted his employer to inquire about returning to his light duty position.  In fact, the Claimant’s only communication with the employer after his work injury was a phone call with his supervisor to inquire about claimant’s retirement options and the dollar amount of a payout for claimant’s unused leave accruals.


At trial and in a supporting Memorandum of Law, Ms. Pevzner successfully argued that the claimant voluntarily retired from his employment for non-compensable reasons and, as such, claimant was not entitled to ongoing indemnity benefits during his retirement.  Significant within the evidence submitted by Ms. Pevzner was the lack of any medical recommendation to retire; a point which was further established during her cross examination of the treating physician. It was also established at trial that the claimant was not totally disabled and could return to work with restrictions within one month of the date of claimant’s work accident.  In that regard, Ms. Pevzner argued that the developed record clearly showed that claimant voluntarily retired from his job and there was no evidence that claimant was forced to retire due to his work injury. The presiding Law Judge agreed with the defense and denied ongoing benefits in their entirety.


This case highlights the significant indemnity exposure that insurance carriers and self-insureds face in New York Workers’ Compensation claims involving a claimant who alleges involuntary retirement due to a work-related disability.  In such cases, the claimant is entitled to receive both retirement and Workers’ Compensation indemnity benefits if his or her work-related disability was a significant factor in forcing the claimant’s into retirement.  In the instant case, the firm succeeded, on the Board level, in cutting of a significant future indemnity exposure to its self-insured client through the aggressive defense and trial of this claim for involuntary retirement.  This matter is currently on appeal.


Bell Pevzner

Partner – Sobel Pevzner, LLC