State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 522851 

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In the Matter of the Claim of

GEANNINE MADDOX,

Appellant,

v

BAUMANN SONS BUSES et al., MEMORANDUM AND ORDER

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: October 11, 2016

Before: Peters, P.J., Lynch, Devine, Clark and Aarons, JJ.

__________

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

for appellant.

Stewart Greenblatt Manning & Baez, Syosett (Luke R.

Tarantino of counsel), for Baumann Sons Buses and another,

respondents.

__________

Devine, J.

Appeal from a decision of the Workers' Compensation Board,

filed July 24, 2015, which ruled, among other things, that

claimant sustained a permanent partial disability and a 40% loss

of wage-earning capacity.

In June 2009, claimant injured her back while working as a

driver and her subsequent claim for workers' compensation

benefits was established. Thereafter, a Workers' Compensation

Law Judge (hereinafter WCLJ) found that claimant sustained a
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permanent partial disability and, after taking into consideration

vocational factors such as age, education and experience, found

that claimant had a loss of wage-earning capacity of 80%. The

WCLJ also modified prior temporary partial disability awards for

the time periods of August 2, 2010 to February 4, 2011, March 16,

2011 to August 12, 2011 and August 3, 2012 to June 10, 2014. 

Upon review, the Workers' Compensation Board agreed that claimant

sustained a permanent partial disability, but found that she had

a loss of wage-earning capacity of 40%. The Board also rescinded

the WCLJ's modification of the prior awards. Claimant now

appeals.

Claimant challenges the Board's determination that she

sustained a loss of wage-earning capacity of 40%. "In order to

fix the duration of benefits in a permanent partial disability

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

obliged to determine a claimant's 'loss of wage-earning

capacity'" (Matter of Wormley v Rochester City Sch. Dist., 126

AD3d 1257, 1258 [2015], quoting Workers' Compensation Law § 15

[3] [w]; see Matter of Canales v Pinnacle Foods Group LLC, 117

AD3d 1271, 1273 [2014]). "In so doing, the 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 1304, 1306 [2016] [internal quotation marks and citation

omitted]; see Matter of Wormley v Rochester City Sch. Dist., 126

AD3d at 1258). 

Here, claimant's treating orthopedic surgeon issued a

report indicating that claimant's functional capacities at work

included occasionally being able to sit, stand, walk, kneel and

bend, but that she was unable to perform sedentary work. The

report also indicated that claimant was able to drive a vehicle

frequently, however, the surgeon contradicted his report by

testifying that a sedentary job may be appropriate for claimant.1

1 Pursuant to the EC-4.3 form, the term "frequently"

refers to the capability of performing a work activity "from

[one-third] to [two-thirds] of the time" and the term
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The Board credited the medical opinion as to claimant's ability

to drive frequently and the surgeon's testimony regarding

claimant's ability to perform sedentary work, and, in determining

her loss of wage-earning capacity, considered the fact that

claimant was 37 years old, had a high school education, was

proficient with the English language and had past work experience

as a driver for an ambulette company and as a bus driver (see

Matter of Roman v Manhattan & Bronx Surface Tr. Operating Auth.,

139 AD3d at 1306; New York State Guidelines for Determining

Permanent Impairment and Loss of Wage Earning Capacity at 47-49

[2012]). Deferring to the Board's assessment of credibility and

record evidence, we find that substantial evidence supports its

establishment of a 40% loss of wage-earning capacity (see Matter

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

AD3d at 1306; Matter of Wormley v Rochester City Sch. Dist., 126

AD3d at 1258).

Claimant also challenges the Board's rescission of the

WCLJ's modification of the prior awards for temporary partial

disability. The Board rescinded the modification based upon its

belief that the WCLJ improperly modified the awards based upon

the loss of wage-earning capacity, stating that "[a]wards for a

temporary [partial] disability are based upon the medical

impairment, while awards for a permanent disability are based

upon loss of wage[-]earning capacity" (see e.g. Matter of

Franklin v New England Motor Frgt., 142 AD3d 747, 748 [2016]). A

review of the record, however, reveals that the WCLJ found

claimant to have a 75% medical impairment. Notably, the WCLJ

stated at the hearing that the prior temporary awards "have been

modified to the 75 percent medical impairment level" and there is

nothing in the record to indicate that the WCLJ based the

modification of the temporary awards on the finding of an 80%

loss of wage-earning capacity. Inasmuch as "a Board

determination cannot be sustained when it is clearly based on

incorrect facts or an inaccurate reading of the record" (Matter

of LaFlamme v S.S. Elec. Repair Shop, Inc., 12 AD3d 732, 733

[2004] [internal quotation marks and citation omitted]; see

"occasionally" refers to the capability to perform a task "up to

[one-third] of the time."
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Matter of Simpson v New York City Tr. Auth., 136 AD3d 1192, 1193

[2016]), the Board's determination that the WCLJ improperly

modified the prior temporary awards based upon the loss of wageearning capacity, and not based upon medical impairment, must be

reversed and the matter remitted to the Board for further

proceedings.

Peters, P.J., Lynch, Clark and Aarons, JJ., concur.

ORDERED that the decision is modified, without costs, by

reversing so much thereof as rescinded the modification of the

prior temporary disability awards for the time periods of August

2, 2010 to February 4, 2011, March 16, 2011 to August 12, 2011

and August 3, 2012 to June 10, 2014; matter remitted to the

Workers' Compensation Board for further proceedings not

inconsistent with this Court's decision; and, as so modified,

affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court