Claim of Scaparo v. Kelsey-Hayes Co. , 496 N.Y.S.2d 569 ( 1985 )

Casey, J.

Appeal from a decision of the Workers’ Compensation Board, filed June 27, 1984, as amended by decisions filed November 7, 1984 and March 18, 1985.

Claimant sustained a work-related injury to his back on February 20, 1981 which resulted in a permanent partial disability. He returned to work on August 17, 1981, but retired on October 30, 1981. The employer contends that the Workers’ Compensation Board erred in awarding claimant reduced earnings for a period subsequent to his retirement.

It is undisputed that claimant has a work-related permanent partial disability, and there is ample support in the record for the Board’s finding that the disability was a contributing factor in claimant’s decision to retire. The employer argues that claimant should be barred from benefits since he refused to appear for a medical examination scheduled by the employer’s representative (see, Workers’ Compensation Law § 13-a [4]). The Board rejected the argument, concluding that the employer had ample opportunity to develop the record and had failed to do so. We see no basis for disturbing the Board’s decision in this regard, particularly since the employer concedes that claimant is permanently partially disabled. The decision should be affirmed.

Decision affirmed, with costs to the Workers’ Compensation Board. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.