State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: August 25, 2016 521983 

________________________________

In the Matter of the Claim of

JAMES FRANKLIN,

Appellant,

v MEMORANDUM AND ORDER

NEW ENGLAND MOTOR FREIGHT

et al., 

Respondents.

WORKERS COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: August 18, 2016

Before: Garry, J.P., Egan Jr., Devine, Mulvey and Aarons, JJ.

__________

Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel),

for appellant.

__________

Mulvey, J.

Appeal from a decision of the Workers' Compensation Board,

filed April 14, 2015, which ruled, among other things, that

claimant sustained a causally-related loss of wage-earning

capacity.

In June 2012, claimant, a tractor-trailer truck driver,

sustained a work-related injury to his lower back while

attempting to lift the rear door of his trailer to unload

freight. He thereafter applied for and received workers'

compensation benefits for the initial period of total disability. 

Claimant returned to work in January 2013, but was unable to

continue working after October 11, 2013 after experiencing pain
-2- 521983 

in his lower back and left knee while loading and unloading

freight for the employer on that day. In May 2014, a Workers'

Compensation Law Judge found that the October 2013 injury to

claimant's lower back was a recurrence of the June 2012 injury,

classified claimant as having sustained a moderate temporary

partial disability and found that claimant, when taking into

consideration his vocational and educational background, had

sustained a 75% loss of wage-earning capacity subsequent to

January 13, 2014. Upon review, the Workers' Compensation Board

agreed that claimant had sustained a causally-related disability,

but found that vocational factors may not be taken into account

when making a determination of a temporary disability and,

accordingly, reduced the award of benefits to reflect the

moderate temporary disability rate. Claimant now appeals.

We affirm. The Board properly rejected claimant's argument

that the Board may consider non-medical and vocational factors in

determining his wage-earning capacity for the purpose of setting

the compensation rate for his temporary disability. Under the

Workers' Compensation Law, "[f]or both temporary and permanent

partial disabilities, the wage earning capacity of a claimant

with no actual earnings is to be set by the Board at a reasonable

level not greater than 75% of the claimant's previous full-time

earnings, having due regard to the nature of his or her physical

impairment" (Matter of Canales v Pinnacle Foods Group LLC, 117

AD3d 1271, 1273 [2014] [internal quotation marks, brackets and

citations omitted]; see Workers' Compensation Law § 15 [5-a]). 

Workers' Compensation Law § 15 (5-a) includes "no reference to

vocational factors" (Matter of Canales v Pinnacle Foods Group

LLC, 117 AD3d at 1273). Indeed, we have previously explained

that "[v]ocational and functional considerations, such as a

claimant's age, education, training, experience, restrictions and

related factors, are appropriately taken into account with

respect to loss of wage-earning capacity only as they are

relevant to the duration of a claimant's permanent partial

disability benefits" (Matter of Baczuk v Good Samaritan Hosp.,

132 AD3d 1033, 1035 [2015]; see Workers' Compensation Law § 15

[3] [w]; Matter of Wormley v Rochester City Sch. Dist., 126 AD3d

1257, 1258 [2015]; Matter of Williams v Preferred Meal Sys., 126

AD3d 1259, 1259 [2015]; Matter of Canales v Pinnacle Foods Group

LLC, 117 AD3d at 1273-1274; see also Employer: Longley Jones Mgt.
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Corp., 2012 WL 1893410, 2012 NY Wrk Comp LEXIS 173 [WCB No. 6070

4882, May 21, 2012]; Employer: Buffalo Auto Recovery Serv., 2009

WL 5177881, 2009 NY Wrk Comp LEXIS 15501 [WCB No. 8070 3905, Nov.

12, 2009]; New York Workers' Compensation Handbook § 5.31 [1]

[c]; [2]). Accordingly, as the record medical evidence

established that claimant had a temporary partial disability for

the time period in question and that permanency had not yet been

established, the Board's decision is supported by substantial

evidence and will not be disturbed (see Matter of Canales v

Pinnacle Foods Group LLC, 117 AD3d at 1274; Matter of Hallarman v

Hallarman & Hallarman, 124 AD2d 458, 460 [1986]; New York State

Guidelines for Determining Permanent Impairment and Loss of Wage

Earning Capacity at 7, 44, 47-48 [2012]; cf. Matter of Baczuk v

Good Samaritan Hosp., 132 AD3d at 1035). 

Garry, J.P., Egan Jr., Devine and Aarons, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court