State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 9, 2017 523445 

________________________________

In the Matter of the Claim of 

JAMES CURCIO, 

Appellant, 

v

SHERWOOD 370 MANAGEMENT LLC MEMORANDUM AND ORDER 

et al.,

Respondents.

WORKERS' COMPENSATION BOARD, 

Respondent.

JOSEPH A. ROMANO,

Appellant.

________________________________

Calendar Date: January 9, 2017

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

__________

Law Office of Joseph A. Romano, New York City (Joseph A.

Romano of counsel), for appellants.

William O'Brien, State Insurance Fund, Endicott (Scott B.

Anglehart of counsel), for Sherwood 370 Management LLC and

another, respondents.

__________

Mulvey, J.

Appeal from a decision of the Workers' Compensation Board,

filed December 30, 2015, which ruled that claimant sustained a

permanent partial disability and a 90% loss of wage-earning

capacity and awarded counsel fees.
-2- 523445 

Claimant, a building engineer for 27 years, sustained a

compensable work-related injury to his back and neck and was

awarded workers' compensation benefits. Thereafter, a Workers'

Compensation Law Judge (hereinafter WCLJ) classified claimant as

having a permanent total disability and, among other things,

awarded $7,920 in fees to claimant's counsel. On administrative

appeal, the Workers' Compensation Board, among other things,

modified the WCLJ's decision and found that claimant has a

permanent partial disability and a loss of wage-earning capacity

of 90%. The Board sua sponte also reduced the counsel fee award

to $450 due to counsel's failure to properly complete the OC400.1 counsel fee application. This appeal ensued.1

We are unpersuaded by claimant's contention that

substantial evidence does not support the Board's finding that he

is permanently disabled only to a partial extent. "This Court

accords great deference to the Board's resolution of issues

concerning conflicting medical evidence and witness credibility,

and the Board may accept or reject portions of a medical expert's

opinion" (Matter of Mearns v Sunoco, Inc., 77 AD3d 1045, 1046

[2010] [internal quotation marks and citation omitted]; see

Matter of Campbell v Interstate Materials Corp., 135 AD3d 1276,

1277 [2016]). Here, claimant is classified with a class 4,

severity ranking I impairment of the lumbar spine, which, as

noted by the Board, is not equivalent to total disability (see

New York State Guidelines for Determining Permanent Impairment

and Loss of Wage Earning Capacity, table 18.1 [2012]).2 Although

1 Inasmuch as the issues raised on appeal concern both

claimant and his attorney, the notice of appeal should have also

been filed on behalf of claimant and not solely on behalf of his

attorney (compare Matter of Cedeno v PACOA, 120 AD3d 1458, 1459

[2014]; Matter of Wolfe v New York City Dept. of Corr., 112 AD3d

1197, 1198 [2013]). The parties do not raise this issue and

there is no allegation of prejudice. Therefore, we will

disregard the error and treat the appeal as also taken by

claimant (see CPLR 2001).

2 The Board noted that the opinion of Paul Kleinman, the

independent medical examiner, "regarding . . . claimant's degree
-3- 523445 

claimant's physician concluded that claimant was permanently

totally disabled, he acknowledged that claimant continued to

perform daily living activities and was able to drive himself to

medical appointments. The independent medical examiner, Paul

Kleinman, opined that claimant's condition, while permanent, was

a marked partial disability and that claimant could perform fulltime sedentary work with frequent changes in position and other

restrictions. Given the differing medical opinions, we find that

there is substantial evidence to support the Board's conclusion

that claimant's disability is partial – not total – and it will

not be disturbed (see Matter of Roman v Manhattan & Bronx Surface

Tr. Operating Auth., 139 AD3d 1304, 1305 [2016]; Matter of

Campbell v Interstate Materials Corp., 135 AD3d at 1278). 

To the extent that claimant challenges the establishment of

a 90% loss of wage-earning capacity, we find that the Board's

decision is supported by substantial evidence. In determining

loss of wage-earning capacity in cases such as this that are not

amenable to a schedule award, "[t]he Board relies upon various

factors in making that determination, including the nature and

degree of the work-related permanent physical and/or mental

impairment, work restrictions, and claimant's age" (Matter of

Roman v Manhattan & Bronx Surface Tr. Operating Auth., 139 AD3d

at 1306 [internal quotation marks and citations omitted]; see

Matter of Cameron v Crooked Lake House, 106 AD3d 1416, 1416

[2013], lv denied 22 NY3d 852 [2013]). The Board considered

claimant's age of 52, his proficiency in reading and writing, his

limited college education and his employment history consisting

of primarily physical labor for 27 years. While the Board also

credited the opinion of claimant's physician that claimant was

capable of less than sedentary work given his work restrictions,

including his limited ability to occasionally lift, pull and push

five pounds, it also considered claimant's functional abilities

regarding daily living. As the Board considered appropriate

medical and vocational factors, we find no reason to disturb its

finding that his disability deprived him of 90% of his wageof impairment [could not] be considered in reaching a conclusion

on medical impairment because his opinion is not in accordance

with the 2012 Guidelines."
-4- 523445 

earning capacity (see Matter of Rosales v Eugene J. Felice

Landscaping, 144 AD3d 1206, 1207 [2016]; Matter of Wormley v

Rochester City Sch. Dist., 126 AD3d 1257, 1258 [2015]; New York

State Guidelines for Determining Permanent Impairment and Loss of

Wage Earning Capacity § 9.3 [2012]). 

Finally, claimant's counsel contends that the Board erred

in reducing the WCLJ's award of counsel fees based upon counsel's

failure to complete the OC-400.1 fee application form with

respect to dates or time spent on the services rendered. Where

counsel requests a fee in excess of $450, the Board's rules and

regulations provide that an attorney must file a written

application for such fee using form OC-400.1 and that form must

be "accurately completed" (12 NYCRR 300.17 [d] [1]). The form

specifically instructs an attorney to, among other things,

include the dates that the services were rendered and the time

spent.3 Such information, which is also required to be provided

to a claimant, is relevant to the Board's evaluation of the

services rendered (see 12 NYCRR 300.17 [e], [f], [g]). "The

Board may approve counsel fees 'in an amount commensurate with

the services rendered'" (Matter of Kennedy v New York City Dept.

of Corr., 140 AD3d 1572, 1574 [2016], quoting 12 NYCRR 300.17

[f]), and its award will not be disturbed absent a showing that

it is arbitrary and capricious or an abuse of discretion (see

Matter of Kennedy v New York City Dept. of Corr., 140 AD3d at

1574). Here, counsel listed the services rendered, but inserted

"35 hours" for the time spent on the services and did not

indicate any dates upon which the services were performed or the

amount of time spent on each service rendered. Under these

circumstances, we do not find that the Board abused its

discretion or acted in an arbitrary and capricious manner in

3 To the extent that our prior decision in Matter of Pavone

v Ambassador Transp., Inc. (26 AD3d 645, 646 [2006]) held that 12

NYCRR 300.17 (f) does not require counsel to record the amount of

time spent rendering legal services, it should not be followed

(see Matter of Fernandez v Royal Coach Lines, Inc., AD3d ,

 n, 2017 NY Slip Op 00368, *2 n [2017]; Matter of Tenecela v

Vrapo, AD3d , n 2, 2017 NY Slip Op 00367,*2 n 2

[2017]. 
-5- 523445 

finding the OC-400.1 fee application form defective and reducing

the counsel fees to the maximum $450 fee permitted in the absence

of the accurate completion of such application form (see 12 NYCRR

300.17 [d] [1]; [h]; Matter of Kennedy v New York City Dept. of

Corr., 140 AD3d at 1574). We have reviewed counsel's remaining

contentions with regard to the reduction of counsel fees and find

them to be unpersuasive. 

McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court