State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 3, 2016 520972 

521386

521973

________________________________

In the Matter of the Claim of

MICHAEL SARBO,

Respondent,

v

TRI-VALLEY PLUMBING & HEATING 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, Albany (Edward

Obertubbesing of counsel), for appellants.

Buckley, Mendleson, Criscione & Quinn, PC, Albany (Brendan

G. Quinn of counsel), for Michael Sarbo, respondent.

Eric T. Schneiderman, Attorney General, New York City

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

respondent.

__________
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Lynch, J.

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

Board, filed August 8, 2014, which ruled, among other things,

that claimant sustained a permanent partial disability and a 60%

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

of said Board, filed July 10, 2015 and October 29, 2015, which,

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

prior decision.

In August 2010, claimant, a sheet metal installer,

sustained a compensable work-related injury to his back. After a

hearing in February 2011, a Workers' Compensation Law Judge

(hereinafter WCLJ) found that claimant's average weekly wage

before the injury was $1,302.86. Claimant did not return to

work. Following a hearing in October 2013, a WCLJ adopted an

independent medical examiner's determination that claimant had a

permanent partial class 3, severity B impairment (see New York

State Guidelines for Determining Permanent Impairment and Loss of

Wage Earning Capacity, table 18.1 [2012]). Based on that

impairment, the WCLJ found that claimant had a wage-earning

capacity of 50% (see Workers' Compensation Law § 15 [5-a]) and,

after considering that claimant was 43 years old, had an eleventh

grade education and had only worked as a manual laborer,

determined that claimant had a loss of wage-earning capacity of

55% (see Workers' Compensation Law § 15 [3] [w]). Claimant was

awarded continuing payments at a rate of $434.29 per week for a

period not to exceed 350 weeks (see Workers' Compensation Law

§ 15 [3] [w] [viii]). 

In a sequence of three decisions, culminating in its

October 2015 amended decision, the Workers' Compensation Board

modified the award by increasing claimant's loss of wage-earning

capacity to 60%, while reducing his wage-earning capacity to 40%. 

In so doing, the Board concluded that vocational factors could be

considered in fixing claimant's wage-earning capacity under

Workers' Compensation Law § 15 (5-a). As a result, claimant's

weekly rate was raised to $521.14. The employer and its workers'

compensation carrier have appealed all three Board decisions.
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The sole issue on this appeal is whether the Board was

authorized to consider vocational factors in fixing claimant's

wage-earning capacity for purposes of computing the rate of

compensation.1 For the reasons set forth in Matter of Rosales v

Eugene J. Felice Landscaping (___ AD3d ___ [decided herewith]),

we conclude that the Board was so authorized and that there was

substantial evidence to support the Board's determination that

claimant had a wage-earning capacity of 40%.

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

1 In his brief, claimant advises that he returned to work

on or about March 31, 2014 and that the award from that point

forward has been calculated based on his actual earnings (see

Workers' Compensation Law § 15 [5-a]). As such, the issue here

narrows to the proper rate of compensation for the period from

October 1, 2013 to October 31, 2014.