State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 2, 2015 520042 

________________________________

In the Matter of SCOTT EMPARA, 

Appellant, 

v

NEW ROCHELLE SCHOOL DISTRICT MEMORANDUM AND ORDER

 et al., 

Respondents.

WORKERS' COMPENSATION BOARD, 

Respondent.

________________________________

Calendar Date: June 5, 2015

Before: McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.

__________

Annette G. Hasapidis, South Salem, for appellant.

Cherry, Edson & Kelly, LLP, Tarrytown (Ralph E. Magnetti of

counsel), for New Rochelle School District and another,

respondents.

__________

Egan Jr., J.

Appeals (1) from a decision of a panel of the Workers'

Compensation Board, filed August 21, 2013, which ruled that

claimant was not entitled to an increase in the schedule loss of

use, and (2) from a decision of the full Board, filed October 30,

2014, which adhered to the Board panel's decision.

Claimant, an electrician, sustained a compensable workrelated injury in 2003 and, based upon the medical evidence

presented, the parties stipulated to a 37.5% schedule loss of use

of claimant's left leg. Claimant sustained another injury in
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2009 that resulted in arthroscopic surgery on his left knee and,

based upon the opinion of his orthopedic surgeon that claimant

had reached maximum medical improvement and suffered a permanent

impairment of 40% to his left leg, claimant sought additional

workers' compensation benefits. By decision dated November 27,

2012, a Workers' Compensation Judge (hereinafter WCLJ)

determined, without explanation or any indication as to whether

the prior schedule loss of use was considered, that claimant

sustained a 20% loss of use of his left leg that was causally

related to the 2009 accident. The matter was continued for,

among other things, consideration of an award of compensation. 

By decision dated January 22, 2013, the WCLJ awarded benefits

based upon the 20% loss of use of claimant's left leg; the

employer objected to the award in that it did not consider the

previous 37.5% schedule loss of use in connection with the 2003

accident. 

Thereafter, the employer appealed the January 22, 2013 WCLJ

decision, challenging the schedule loss of use award. Claimant

opposed, claiming that the appeal was untimely given that the

November 27, 2012 decision – not the January 22, 2013 decision –

was final with regard to the issue of claimant's schedule loss of

use for the 2009 accident. Ultimately, the Workers' Compensation

Board, upon full Board review, rejected claimant's challenge to

the timeliness of the appeal and reversed the WCLJ's decision,

finding that claimant was not entitled to any award for the 2009

injury inasmuch as there was no increased schedule loss of use of

the left leg greater than that previously awarded in 2003. These

appeals by claimant ensued.1

We are unpersuaded by claimant's contention that the Board

erred in finding the employer's appeal to be timely. Although

the WCLJ's November 27, 2012 decision found that claimant had

sustained a schedule loss of use in connection with the 2009

injury, the WCLJ did so without explanation or any indication as

1 The Board panel's August 21, 2013 decision was superceded

by the decision of the full Board, and claimant's appeal from the

Board panel decision must be dismissed (see Matter of Winters v

Advanced Auto Parts, 119 AD3d 1041, 1043 n [2014]).
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to whether the prior award of 37.5% schedule loss of use was to

be considered in calculating a compensation award. As noted by

the Board, it was unclear from the November 27, 2012 decision

whether any award would be made to claimant in light of the issue

of the prior schedule loss of use award. Under the particular

circumstances of this case, and given the ambiguity in the WCLJ's

November 27, 2012 decision regarding the applicability of the

prior schedule loss of use and whether apportionment would be

applied to the ultimate award in connection with the current

claim, we cannot say that the Board's decision to grant the

employer's application for review was arbitrary and capricious or

an abuse of discretion (see generally Matter of You Cai Zhang v

Tony's Marble & Granite Supply Corp., 95 AD3d 1510, 1511 [2012];

Matter of Hiser v Richmor Aviation, Inc., 52 AD3d 915, 916

[2008]). 

Turning to the merits, "[w]hether a condition warrants a

schedule loss award or an award of continuing disability benefits

is a question of fact for resolution by the Board, and its

determination will be upheld if supported by substantial

evidence" (Matter of Kondylis v Alatis Interiors Co., Ltd., 116

AD3d 1184, 1185 [2014] [internal quotation marks and citations

omitted]). As noted by the Board, a schedule award is not given

for an injury, but for the residual physical and functional

impairments (see State of New York Workers' Compensation Board

Medical Guidelines, at 4 [June 1996]). Here, the independent

medical examiner testified that, although the guidelines provide

for a 10% schedule loss of use, his examination of claimant

revealed no atrophy, no instability and no loss of motion. 

"[W]hile the guidelines present useful criteria, the ultimate

determination as to the degree of disability rests with the

Board" (Matter of Carlucci v Omnibus Print. Co., Inc., 68 AD3d

1259, 1260 [2009]). Given the foregoing medical testimony,

substantial evidence supports the Board's finding that there was

no new and greater increase in the schedule loss of use of the

left leg related to the 2009 accident. Claimant's remaining

contentions, to the extent not specifically discussed herein,

have been reviewed and found to be without merit. 

McCarthy, J.P., Lynch and Devine, JJ., concur.
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ORDERED that the appeal from the August 21, 2013 decision

is dismissed, without costs.

ORDERED that the October 30, 2014 decision is affirmed,

without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court