IN RE: the Claim of Elaine M. BEEHM (2000)

Appeal from a decision of the Workers' Compensation Board, filed December 16, 1998, which ruled that claimant did not voluntarily withdraw from the labor market.

Claimant, a clerical worker, fell and injured her ankle at work in May 1993.   She returned to work in June 1993, but found it difficult to perform some of her duties and continued to seek medical treatment for pain in her foot.   In March 1995, she underwent surgery on her foot to alleviate the pain and returned to work in April 1995.   According to claimant, the surgery did not relieve her pain and, effective June 29, 1995, she accepted a retirement incentive offered to eligible employees.   The employer asserted that claimant had voluntarily withdrawn from the labor market, making her ineligible for workers' compensation benefits after June 29, 1995.   Finding that claimant's decision to retire was prompted by her compensable injury, the Workers' Compensation Board ruled that claimant had not voluntarily withdrawn from the labor market.   The employer appeals.

 Whether a claimant has voluntarily withdrawn from the labor market is a factual issue for the Board to resolve and, if supported by substantial evidence in the record, the Board's resolution of that issue will not be disturbed (see, Matter of Johnson v. New York City Health & Hosp. Corp., 251 A.D.2d 920, 674 N.Y.S.2d 829).   Claimant's testimony and the medical evidence of her continuing pain despite ongoing medical treatment, including the March 1995 surgery, provide substantial evidence to support the Board's finding that claimant's decision to retire was prompted by her compensable injury (compare, Matter of Landi v. Carrier Corp., 125 A.D.2d 789, 509 N.Y.S.2d 896;  with Matter of Bahor v. New York Tel. Co., 91 A.D.2d 756, 458 N.Y.S.2d 24).   The Board's decision must, therefore, be affirmed despite the existence of other evidence in the record that could support a contrary finding (see, Matter of Grucza v. Waste Stream Technology, 252 A.D.2d 901, 903, 676 N.Y.S.2d 336).

ORDERED that the decision is affirmed, without costs.

CARPINELLO, J.

CARDONA, P.J., MERCURE, SPAIN and ROSE, JJ., concur.