State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 9, 2017 523440 

________________________________

In the Matter of the Claim of

ALFONSO SMITH,

Appellant,

v

NEW YORK CITY HOUSING MEMORANDUM AND ORDER

 AUTHORITY et al.,

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

JOSEPH A. ROMANO,

Appellant.

________________________________

Calendar Date: January 13, 2017

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

__________

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

Romano of counsel), for appellants.

Weiss, Wexler & Wornow, PC, New York City (J. Evan Perigoe

of counsel), for New York City Housing Authority and another,

respondents.

__________

Peters, P.J.

Appeal from a decision of the Workers' Compensation Board,

filed December 4, 2015, which ruled that claimant sustained a

permanent partial disability and a 60% loss of wage-earning

capacity and awarded counsel fees.
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In 2007, claimant suffered a work-related injury to his

left ankle and he was awarded workers' compensation benefits. 

The claim was later amended to include a consequential injury to

his back. In 2015, a Workers' Compensation Law Judge found that

claimant sustained a permanent partial disability and a loss of

wage-earning capacity of 90%. The Workers' Compensation Law

Judge also awarded counsel fees of $4,300. Upon review, the

Workers' Compensation Board modified by reducing the loss of

wage-earning capacity to 60% and the award of counsel fees to

$3,400. This appeal ensued, raising claims on behalf of claimant

and, with regard to the reduced counsel fees award, his

attorney.1

In order to fix the duration of benefits in cases such as

this, where a claimant sustains a permanent partial disability

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

determine the claimant's loss of wage-earning capacity (see

Workers' Compensation Law § 15 [3] [w]; Matter of Roman v

Manhattan & Bronx Surface Tr. Operating Auth., 139 AD3d 1304,

1306 [2016]; Matter of Wormley v Rochester City Sch. Dist., 126

AD3d 1257, 1258 [2015]). "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 [the] claimant's age"

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

139 AD3d at 1306 [internal quotation marks and citation omitted];

see Matter of Canales v Pinnacle Foods Group LLC, 117 AD3d 1271,

1273 [2014]). 

Here, the Board credited the testimony of Alan Zimmerman,

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 n

[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).
-3- 523440 

an orthopedic surgeon who examined claimant on three occasions on

behalf of the employer. Zimmerman testified that claimant

suffers from a class 2, severity A impairment of the lumbar spine

(see New York State Guidelines for Determining Permanent

Impairment and Loss of Wage Earning Capacity, tables 11.1, 18.1

[2012]), as well as a 50% schedule loss of use of the left ankle. 

Zimmerman also opined that, although claimant's ability to stand

or walk was limited to approximately 20 minutes at a time, he had

no restrictions as far as sitting and he could perform both

sedentary work and some light duty work within these limitations. 

The Board properly considered claimant's functional abilities, as

well as his age, his eleventh-grade education, previous work

experience and his proficiency in the English language. 

Deferring to the Board's assessment of credibility, substantial

evidence supports its determination that claimant has a 60% 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 1258-1259; Matter of

Cameron v Crooked Lake House, 106 AD3d 1416, 1416 [2013], lv

denied 22 NY3d 852 [2013]). 

As to the reduction in the counsel fees, "the Board may

approve a fee 'in an amount commensurate with the services

rendered and having due regard for the financial status of the

claimant and whether the attorney . . . engaged in dilatory

tactics or failed to comply in a timely manner with [B]oard

rules. In no case shall the fee be based solely on the amount of

the award'" (Matter of Pavone v Ambassador Transp., Inc., 26 AD3d

645, 646 [2006], quoting 12 NYCRR 300.17 [f]). A fee approved by

the Board will only be disturbed if this Court finds that it is

arbitrary, capricious, unreasonable or otherwise constitutes an

abuse of the Board's discretion (see Matter of Grasso v Brewster

Cent. School Dist., 81 AD3d 1060, 1061 [2011]; Matter of Pavone v

Ambassador Transp., Inc., 26 AD3d at 646-647). Here, the Board

summarily reduced the amount of counsel fees from $4,300 to

$3,400, with no discussion as to services rendered, financial

status of claimant or any dilatory actions by counsel. 

Accordingly, we are unable to discern the rationale for the

Board's decision to reduce the fee and, therefore, we must remit

the matter for further findings in that regard. 
-4- 523440 

Lynch, Devine, Clark and Aarons, JJ., concur.

ORDERED that the decision is modified, without costs, by

reversing so much thereof as awarded claimant's counsel $3,400 in

counsel fees; 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