State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 3, 2016 519941 

521385

521982

________________________________

In the Matter of the Claim of

LUIS ROSALES,

Respondent,

v

EUGENE J. FELICE LANDSCAPING MEMORANDUM AND ORDER

et al.,

Appellants.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: September 14, 2016

Before: McCarthy, J.P., Lynch, Rose, Devine and Mulvey, JJ.

__________

William O'Brien, State Insurance Fund, White Plains

(Rudolph Rosa Di Sant of counsel), for appellants.

Joseph A. Romano, New York City, for Luis Rosales,

respondent.

Eric T. Schneiderman, Attorney General, New York City

(Donya Fernandez of counsel), for Workers' Compensation Board,

respondent.

__________
-2- 519941

521385

521982 

Lynch, J.

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

Board, filed January 16, 2014, which ruled, among other things,

that claimant sustained a permanent partial disability and a 90%

loss of wage-earning capacity, and (2) from two amended decisions

of said Board, filed July 1, 2015 and October 29, 2015, which,

upon reconsideration, among other things, clarified the Board's

prior decision.

In June 2010, claimant was injured while working as a

landscaper. Consequently, he has not worked since September 2010

and underwent back surgery in October 2010. Thereafter, claimant

filed a claim for workers' compensation benefits. The claim was

first heard in March 2011 before a Workers' Compensation Law

Judge (hereinafter WCLJ), who determined that the claim was valid

and that claimant's average weekly wage was $500. The WCLJ also

determined that claimant suffered a permanent partial class 3,

severity B impairment, which indicates a level one medical

impairment on a six-point scale, level six being total impairment

(see New York State Guidelines for Determining Permanent

Impairment and Loss of Wage Earning Capacity, table 18.1 [2012]). 

The WCLJ further found that claimant sustained a permanent

partial disability of 90% after considering various vocational

factors. In particular, claimant testified, through a

translator, that he was 46 years old, was from El Salvador, had

limited English skills, had only completed second grade and had a

work history comprised of manual labor. The WCLJ awarded

benefits at a rate of $300 per week, effectively fixing

claimant's wage-earning capacity at 10%. 

In a sequence of three decisions, culminating in its

October 2015 decision, the Workers' Compensation Board affirmed

the WCLJ decision, concluding that vocational factors may be

considered in calculating the wage-earning capacity of a claimant
-3- 519941

521385

521982 

with a permanent partial disability. The employer and its

workers' compensation carrier (hereinafter collectively referred

to as the employer) have appealed all three Board decisions.

Where, as here, a claimant sustains a permanent partial

disability that is not amenable to a schedule award, the Board is

obligated to fix both the duration of the benefit and the weekly

compensation rate (see Workers' Compensation Law § 15 [3] [w]). 

Compensation is payable at a rate of "sixty-six and two-thirds

percent of the difference between the injured employee's average

weekly wages and his or her wage-earning capacity thereafter in

the same employment or otherwise" (Workers' Compensation Law § 15

[3] [w]).1 Durational limits are based on a claimant's "loss of

wage-earning capacity," a phrase added to Workers' Compensation

Law § 15 (3) (w) as part of a comprehensive reform in 2007 (see L

2007, ch 6; Matter of Canales v Pinnacle Foods Group LLC, 117

AD3d 1271, 1273-1274 [2014]). There is no dispute here that the

Board could consider vocational factors in setting claimant's

loss of wage-earning capacity, and we perceive no abuse of

discretion in the Board's setting that loss at 90% – a finding

that yields a maximum benefit duration of 475 weeks (see Workers'

Compensation Law § 15 [3] [w] [iii]; Matter of Roman v Manhattan

& Bronx Surface Tr. Operating Auth., 139 AD3d 1304 [2016]; Matter

of Baczuk v Good Samaritan Hosp., 132 AD3d 1033, 1035 [2015];

Matter of Wormley v Rochester City Sch. Dist., 126 AD3d 1257,

1258 [2015]; Matter of Canales v Pinnacle Foods Group LLC, 117

AD3d at 1273; Matter of Cameron v Crooked Lake House, 106 AD3d

1416 [2013], lv denied 22 NY3d 852 [2013]). 

At issue is whether the Board was also authorized to

consider vocational factors in determining claimant's wage1 Under this formula, the Board computed claimant's weekly

rate as follows: $500 (average weekly wage) - $50 (10% of average

weekly wage) = $450 ÷ b = $300.
-4- 519941

521385

521982 

earning capacity for purposes of computing the rate of

compensation. Under Workers' Compensation Law § 15 (5-a), for a

claimant with no actual earnings, "the [B]oard may in the

interest of justice fix such wage[-]earning capacity as shall be

reasonable, but not in excess of seventy-five per centum of [a

claimant's] former full time actual earnings, having due regard

to the nature of his [or her] injury and his [or her] physical

impairment." The employer maintains that claimant's wage-earning

capacity under this provision should have been based only on his

physical injury or disability without regard to "vocational

deficits" resulting from, among other things, his limited

education, inability to read and write English and his work

history. 

In Matter of Canales v Pinnacle Foods Group LLC (117 AD3d

1271 [2014], supra), we rejected a claimant's contention that

vocational factors could be considered in setting her wageearning capacity during the period of her temporary partial

disability. In so holding, we observed "that the term 'loss of

wage-earning capacity' is relevant only to the determination of

the duration of permanent partial disability benefits at the time

of classification, and that its addition to Workers' Compensation

Law § 15 (3) (w) was not intended to alter the Board's reliance

on a claimant's . . . degree of physical impairment to determine

his or her 'wage[-]earning capacity' as that term is used in

Workers' Compensation Law § 15 (5-a)" (id. at 1274). The

employer would have us apply that rule here, emphasizing,

correctly, that Workers' Compensation Law § 15 (5-a) has been

applied to determine a claimant's wage-earning capacity in both

temporary and permanent partial disability cases (see Matter of

Matise v Munro Waterproofing Co., 293 NY 496, 499-500 [1944];

Matter of Canales v Pinnacle Foods Group LLC, 117 AD3d at 1273]). 

For the following reasons, we decline to do so. 
-5- 519941

521385

521982 

Statutorily, the key distinction between a temporary and

permanent partial disability claim is that the Board is required

to set a durational limit for a non-scheduled permanent

disability (see Workers' Compensation Law § 15 [3] [w]). In

doing so, as discussed above, the Board is authorized to consider

applicable vocational factors when determining a claimant's loss

of wage-earning capacity (see New York State Guidelines for

Determining Permanent Impairment and Loss of Wage Earning

Capacity § 9.3). Where, as in Canales, the claimant has suffered

a temporary partial disability, the Board does not establish a

durational limit, so his or her "loss of wage-earning capacity"

is plainly an extraneous issue. This is a sensible result

because it is expected that one who is temporarily disabled will

be able to return to his or her former or similar employment. 

Here, unlike Canales, claimant suffered a permanent partial

disability, there is no expectation that he will ever return to

his former or similar employment as a laborer, and the Board

necessarily considered vocational factors when it established his

loss of wage-earning capacity. Because the evidence established

that claimant did not earn actual wages, the statute authorized

the Board to "[fix] in the interest of justice . . . such wage[-

]earning capacity as shall be reasonable . . . having due regard

to the nature of his injury and his physical impairment"

(Workers' Compensation Law § 15 [5-a]). With respect to a

permanent partial disability, we do not read the "due regard to"

clause as limiting the standard to an assessment of the physical

disability alone, but rather to emphasize the significance of the

injury in the calculus. Instead, we find that the broad

discretionary language authorized the Board to consider

vocational factors that reflected claimant's true ability to

secure employment, particularly in the absence of evidence to

negate claimant's testimony that his injury contributed to his

loss of wage-earning capacity (see Matter of Haibel v C.G.

Haibel, Inc., 101 AD2d 678, 679 [1984]). Consequently, under the
-6- 519941

521385

521982 

circumstances presented, we perceive no error in the Board's

determination to fix claimant's wage-earning capacity based on

the undisputed evidence of his physical disability and loss of

wage-earning capacity resulting from his functional limitations

and vocational impediments (see Matter of Cameron v Crooked Lake

House, 106 AD3d at 1416; Matter of Weinhart v Motors Holding, 245

AD2d 577, 579 [1997]; New York State Guidelines for Determining

Permanent Impairment and Loss of Wage Earning Capacity § 9.3). 

Further, because we find that the Board's determination to fix

claimant's wage-earning capacity at 10% was supported by

substantial evidence, we decline to disturb it (see Matter of

Cameron v Crooked Lake House, 106 AD3d at 1416). 

McCarthy, J.P., Rose, Devine and Mulvey, JJ., concur.

ORDERED that the decision and amended decisions are

affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court