Slanar v. Grumman Aerospace Corp. , 430 N.Y.S.2d 708 ( 1980 )

Appeal from a decision of the Workers’ Compensation Board, filed May 15, 1979, which disallowed a claim for continued compensation. The sole issue before this court, pursuant to the stipulation of the parties, is whether the claimant voluntarily retired from employment. Quite obviously, this is a purely factual issue which the majority of the board answered in the affirmative. Since Dr. Cohen’s opinion, as well as other evidence, supports the decisions, it should be affirmed. Decision affirmed, without costs. Greenblott, J. P., Kane, Main and Herlihy, JJ., concur.

Mikoll, J., dissents and votes to reverse in the following memorandum. Mikoll, J. (dissenting). The claimant was a 59-year-old assembler at Grumman Aerospace. He had worked there for 40 years. He injured his back and was unable to work from April 27, 1969. He received compensation payments for his back injury for 18 months. On November 27, 1977 he attempted to return to work. After three days, he applied for retirement pension when he found that his back pain made it impossible for him to continue. His supervisor, John Dukarm, testified that claimant stopped working on November 30, 1977 because of his back pain. Claimant testified that he was unable to make ends meet on his compensation payments and had been forced to sell some real estate to live. It is uncontested that claimant was disabled up through November 27, 1977, when he attempted to return to work, and that he is still disabled. The board’s finding that he left the labor market voluntarily is not supported by substantial evidence. Claimant’s election to take a financially beneficial early retirement does not preclude a compensation award where, as here, his election was prompted by his inability to work and did not signify a vdluntary retirement from the labor market (Matter of Hyers v Wells Fuel Oil Co., 46 AD2d 704). Accordingly, the decision should be reversed.