State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 522267 

________________________________

In the Matter of the Claim of

VINCENT PRAVATO,

Appellant,

v

TOWN OF HUNTINGTON et al., MEMORANDUM AND ORDER

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: October 13, 2016

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

__________

Turley Redmond Rosasco & Rosasco, LLP, Ronkonkoma (John F.

Clennan of counsel), for appellant.

Jones Jones, LLC, New York City (Katherine Caracappa of

counsel), for Town of Huntington and another, respondents.

__________

Rose, J.

Appeal from a decision of the Workers' Compensation Board,

filed November 4, 2015, which ruled, among other things, that

claimant sustained a permanent partial disability and a 40% loss

of wage-earning capacity.

Claimant worked for the Town of Huntington for

approximately 32 years, initially as a laborer and later as

sanitation truck driver. On January 3, 2011, he injured his back

while emptying a garbage can into the hopper of a sanitation

truck. His claim for workers' compensation benefits was
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thereafter established for accident, notice and causal

relationship for an injury to his back. Although claimant

returned to work briefly following his injury, he remained out of

work from January 10, 2011 until January 2, 2012. He returned to

work on January 3, 2012 and continued working until May 18, 2012

when he resigned from his position at the age of 57.

Following hearings in July 2012 and October 2012, claimant

was awarded temporary total disability benefits for various time

periods, including those that postdated his resignation. The

Workers' Compensation Board upheld these awards, finding that

claimant's disability contributed to his decision to resign and

that the awards for temporary total disability were properly

made. The employer's application for full Board review was

denied.

In January 2015, a permanency hearing was conducted and a

Workers' Compensation Law Judge (hereinafter WCLJ), among other

things, classified claimant with a permanent partial disability

(see Workers' Compensation Law § 15 [3] [w]), found that he had a

loss of wage-earning capacity of 70% and was attached to the

labor market, and made awards accordingly. On appeal, a panel of

the Workers' Compensation Board determined that claimant was

capable of performing sedentary work and had a loss of wageearning capacity of only 40%.1 The Board further found that

claimant was not attached to the labor market at the time of the

classification. Consequently, the Board modified the WCLJ's

awards. Claimant now appeals. 

Claimant argues, among other things, that the medical

evidence does not support the Board's finding that he is capable

of performing sedentary work and that this unduly impacted its

assessment of his loss of wage-earning capacity, leading it to

conclude that the loss was only 40%. Upon reviewing the record

before us, we must agree. It is well settled that, in

determining a claimant's "loss of wage-earning capacity" for

1 The Board panel also found that claimant had a wageearning capacity of 60% (see Workers' Compensation Law § 15 [5-

a]).
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purposes of establishing the duration of permanent partial

disability benefits not amenable to a schedule award (Workers'

Compensation Law § 15 [3] [w]), "[t]he Board relies upon various

factors . . ., including the nature and degree of the workrelated permanent physical and/or mental impairment, work

restrictions, [and the] claimant's age" (Matter of Wormley v

Rochester City Sch. Dist., 126 AD3d 1257, 1258 [2015] [internal

quotation marks and citations omitted]; see Canales v Pinnacle

Foods Group. LLC, 117 AD3d 1271, 1273 [2014]; Matter of Cameron v

Crooked Lake House, 106 AD3d 1416, 1416 [2013], lv denied 22 NY3d

852 [2013]).

Here, there was no medical testimony presented at the

hearing concerning the permanency of claimant's impairment or the

extent of his physical limitations. Rather, the only medical

evidence presented was the reports of Thomas Dowling, claimant's

treating orthopedist, and Robert Moriarty, the orthopedist who

conducted an independent medical examination. Both of these

physicians categorized claimant as having a class C condition of

the lumbar spine with a severity rating of B under the applicable

guidelines (see New York State Guidelines for Determining

Permanent Impairment and Loss of Wage Earning Capacity at 120

[2012]). Dowling outlined claimant's many physical limitations,

particularly with regard to lifting, pulling, sitting, standing,

walking, driving a motor vehicle and operating machinery. In his

detailed report, he opined that claimant's exertional ability was

such that he could not perform his prior work activities with

restrictions and was unable to perform even sedentary work. 

Moriarty acknowledged the limitations in claimant's ability to

lift and push or pull more than 25 pounds, as well as his

inability to sit or stand for prolonged periods of time. Unlike

Dowling, however, he did not provide an opinion on claimant's

exertional ability or specify the type of work that claimant

could perform, be it sedentary or otherwise, other than stating

in a conclusory fashion that claimant could work in a "modified

duty capacity."

The WCLJ clearly credited Dowling's opinion that claimant

was incapable of performing even sedentary work in determining,

after also considering claimant's age, limited vocational skills

and high school education, that he had a 70% loss of wage-earning
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capacity. There is, however, a lack of competent medical

evidence in the record to support the Board's contrary finding

that claimant could, in fact, perform sedentary work. Inasmuch

as this was one of the factors considered by the Board in

determining that claimant had a 40% loss of wage-earning capacity

(see Workers' Compensation Law § 15 [3] [w]), substantial

evidence does not support its decision in this regard.2 Contrary

to the employer's claim, this is not a case in which the Board

simply chose to credit a conflicting medical opinion (compare

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

139 AD3d 1304, 1305 [2016]).

Claimant also contends that the Board erred in concluding

that he was not attached to the labor market as of January 15,

2015 when he was classified as permanently partially disabled. 

We note that labor market attachment is a factual issue for the

Board to resolve and its determination in this regard will be

upheld if supported by substantial evidence (see Matter of Zamora

v New York Neurologic Assoc., 19 NY3d 186, 192-193 [2012]; 

Matter of Rothe v United Med. Assoc., 18 AD3d 1093, 1094 [2005]). 

Notably, it is incumbent upon a claimant to demonstrate

"attachment to the labor market with evidence of a search for

employment within medical restrictions" (Matter of Cole v

Consolidated Edison Co. of N.Y. Inc., 125 AD3d 1084, 1085 [2015];

see Matter of Winters v Advance Auto Parts, 119 AD3d 1041, 1042

[2014]; Matter of Bobbitt v Peter Charbonneau Constr., 85 AD3d

1351, 1351 [2011]). 

Claimant testified at the January 2015 hearing that, for

the past 11⁄2 to 2 years, he attempted to find work through the

Department of Labor's One Stop Career Center (hereinafter One

Stop), which he last visited about 21⁄2 to 3 weeks before the

hearing. He indicated that he took classes on preparing a

resume, used the computer to search for jobs and contacted

prospective employers by telephone, but did not have any success

2 To the extent that the same factor was considered by the

Board in determining that claimant had a wage-earning capacity of

60%, this part of its decision is also not supported by

substantial evidence.
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due to his physical restrictions. He admitted that, since

October 2014, he had not submitted any job applications, had not

gone on any job interviews and had made only one visit to One

Stop for about an hour and a half. He stated that he had

submitted a total of 10 job applications, all for driving

positions, from the time that he resigned from his job. 

Furthermore, claimant related that there were a few occasions

when prospective employers contacted him with regard to his

applications, but he failed to elaborate or provide specific

details. In view of the foregoing, there is little to suggest

that claimant searched for suitable employment that was

consistent with his medical restrictions during the time that he

participated in the job search at One Stop. Furthermore, by his

own testimony, it does not appear that he was diligently engaged

in an active search for employment through One Stop at the time

of the January 2015 hearing (see e.g. Employer: American Axle,

2010 WL 438153, *4-5, 2010 NY Work Comp LEXIS 2560, *12 [WCB No.

8030 3659, Feb. 4, 2010]). Accordingly, we conclude that

substantial evidence supports the Board's finding that claimant

was not attached to the labor market as of January 15, 2015 (see

Matter of Rothe v United Med. Assoc., 18 AD3d at 1094; compare

Matter of Cole v Consolidated Edison Co. of N.Y. Inc., 125 AD3d

at 1085). We have considered claimant's remaining arguments and

find them to be unavailing.

Garry, J.P., Egan Jr., Devine and Mulvey, JJ., concur.
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ORDERED that the decision is modified, without costs, by

reversing so much thereof as determined that claimant sustained a

40% loss of wage-earning capacity and had a wage-earning capacity

of 60%; 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