IN RE: the Claim of Alfred JONES (2007)

Appeal from a decision of the Workers' Compensation Board, filed January 27, 2006, which ruled that claimant is not entitled to further compensation pursuant to Workers' Compensation Law § 15(3)(v).

Claimant was found to have a permanent partial disability and awarded workers' compensation benefits at a weekly rate for 156 weeks.  When that time expired, and while also receiving Social Security disability benefits, he applied for additional benefits under Workers' Compensation Law § 15(3)(v).  When the Workers' Compensation Board held that claimant became ineligible for such additional compensation after he turned 62 years of age, he appealed.

 Workers' Compensation Law § 15(3)(v), in pertinent part, provides that “additional compensation ․ shall cease on the date the disabled employee receives or is entitled to receive old-age insurance benefits under the social security act” (emphasis added).  Generally, an individual is eligible for old-age benefits if (1) he or she is at least 62 years old, (2) he or she has sufficient Social Security earnings to be fully insured and (3) he or she applies for such benefits (see 42 USC § 402[a];  20 CFR 404.310).

Claimant argues that Workers' Compensation Law § 15(3)(v) should be interpreted to refer to full old-age benefits, to which he would not be entitled until he reached 65 years of age, and he points to earlier Board precedent which applied that interpretation.  More recent Board decisions, however, have repudiated that interpretation and clarified the Board's view that benefits under this section terminate when a claimant reaches the minimum retirement age of 62 (see Carey Lathing [Transcontinental Ins. Co.], 2004 WL 203866, 2004 N.Y. Wrk. Comp. LEXIS 1707 [Jan. 20, 2004];  Pfaudler Co. [Insurance Co. of N. Am.], 2003 WL 21406691, 2003 N.Y. Wrk. Comp LEXIS 71324 [June 13, 2003];  Joseph Bisceglia & Sons [Liberty Mutual Ins.], 2002 WL 31026283, 2002 N.Y. Wrk. Comp. LEXIS 82994 [Sept. 3, 2002];  City of New York, 2002 WL 1961820, 2002 N.Y. Wrk. Comp. LEXIS 95135 [Aug. 16, 2002];  Homestead Dairies, Inc. [State Ins. Fund], 2001 WL 1638157, 2001 N.Y. Wrk. Comp. LEXIS 97909 [Dec. 10, 2001] ).

 Giving effect to the usual and commonly understood meaning of the language used in Workers' Compensation Law § 15(3)(v) (see Matter of Orens v. Novello, 99 N.Y.2d 180, 185–186, 753 N.Y.S.2d 427, 783 N.E.2d 492 [2002];  Matter of Walker v. Dennison, 36 A.D.3d 89, 91, 824 N.Y.S.2d 464 [2006] ), we agree with the Board that the term “entitled” as used in that section means “eligible,” that is, having the necessary qualifications to receive old-age benefits.  Significantly, the statute does not specify that the benefits to which the claimant is entitled be full rather than partial.  Thus, we read the statute to mean that compensation benefits cease once a claimant either receives or is eligible to receive old-age Social Security benefits.  Pursuant to 20 CFR 404.310, claimant was eligible to receive old-age Social Security benefits when he turned 62.

Although claimant also argues that he was not eligible to apply for old-age benefits at age 62 because he was receiving Social Security disability benefits, he had a choice to either discontinue disability benefits and receive old-age benefits (see 20 CFR 404.407[c] ) or continue disability benefits until they converted to old-age benefits at age 65 (see 20 CFR 404.310 [c] ).  Thus, he was not precluded from receiving old-age benefits after he turned 62 (see Carey Lathing [Transcontinental Ins. Co.], supra;  City of New York, supra ), and the Board properly found that his additional compensation benefits ceased after that age.  We have considered claimant's remaining arguments and find them to be unpersuasive.

ORDERED that the decision is affirmed, without costs.

ROSE, J.

CARDONA, P.J., PETERS, SPAIN and CARPINELLO, JJ., concur.