State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 3, 2016 522076 

________________________________

In the Matter of the Claim of

JANINE TILL,

Appellant,

v MEMORANDUM AND ORDER

APEX REHABILITATION et al.,

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: September 12, 2016

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

__________

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

for appellant.

__________

Clark, J.

Appeal from a decision of the Workers' Compensation Board,

filed June 3, 2015, which ruled, among other things, that

claimant sustained a permanent partial disability and a 15% loss

of wage-earning capacity. 

In 2012, while working as a nursing assistant, claimant

sustained a compensable work-related injury to her back and left

shoulder and was awarded benefits. In 2014, a Workers'

Compensation Law Judge classified claimant as having sustained a

permanent partial disability and a 40% loss of wage-earning

capacity. Upon administrative review, the Workers' Compensation

Board agreed that claimant had sustained a permanent partial

disability, but found that claimant's loss of wage-earning
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capacity was 15%. Claimant appeals.

Claimant argues that, because Workers' Compensation Law 

§ 15 (5-a) limited her wage-earning capacity as a nonworking

claimant to no more than 75% of her "former full time actual

earnings," the Board was statutorily prohibited from determining

that she had less than a 25% loss of wage-earning capacity under

Workers' Compensation Law § 15 (3) (w). She asserts that

Workers' Compensation Law § 15 (3) (w) (xi) and (xii) are in

conflict with Workers' Compensation Law § 15 (5-a) and that, to

reconcile this perceived conflict, we should construe these

provisions as applying only to claimants who are employed at the

time of classification – i.e., those claimants who are not

subject to the 75% restriction imposed by Workers' Compensation

Law § 15 (5-a). For claimant to prevail on her argument, we must

accept the proposition that a nonworking claimant's loss of wageearning capacity must always be the inverse of his or her wageearning capacity. Mindful of established principles of statutory

construction, and upon our examination of the statutory language

and applicable legislative intent, we conclude that it need not

be.1

Under well-settled principles of statutory interpretation,

a statute is to be viewed as a whole and "its various sections

must be considered together and with reference to each other"

(People v Mobil Oil Corp., 48 NY2d 192, 199 [1979]; see

McKinney's Cons Laws of NY, Book 1, Statutes §§ 92, 97, 98). 

Where a potential conflict exists, all parts of the statute must

be given meaning and effect and, if possible, must be "harmonized

to achieve the legislative purpose" (Sanders v Winship, 57 NY2d

391, 396 [1982]; see Heard v Cuomo, 80 NY2d 684, 689 [1993];

Matter of Lumpkin v Department of Social Servs. of State of N.Y.,

59 AD2d 485, 490 [1977], affd 45 NY2d 351 [1978], appeal

dismissed 439 US 1040 [1978]).

1 Our holding in this regard should not be construed as

prohibiting such a result, provided that the Board's finding is

supported by substantial evidence (see e.g. Matter of Rosales v

Eugene J. Felice Landscaping, ___ AD3d ___, ___ [2016] [decided

herewith]).
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As relevant here, in cases of permanent partial disability

that are not amenable to schedule awards, "wage-earning capacity"

is used to determine a claimant's weekly rate of compensation. 

Specifically, in such cases, a claimant's rate of compensation is

two thirds of the difference between his or her average weekly

wage and his or her wage-earning capacity (see Workers'

Compensation Law § 15 [3] [w]). Where a claimant is unemployed,

wage-earning capacity is fixed by the Board – subject to a 75%

cap (see Workers' Compensation Law § 15 [5-a]). In contrast,

"loss of wage-earning capacity," a term that was added in 2007 as

part of a comprehensive reform of the Workers' Compensation Law

(see L 2007, ch 6, § 4), is used at the time of classification to

set the maximum number of weeks over which a claimant with a

permanent partial disability is entitled to receive benefits (see

Workers' Compensation Law § 15 [3] [w]).2 For instance, where,

as here, a claimant is found to have sustained a 15% loss of

wage-earning capacity, he or she is entitled to receive benefits

for 225 weeks (see Workers' Compensation Law § 15 [3] [w] [xii]).

The durational limits imposed by Workers' Compensation Law

§ 15 (3) (w) do not distinguish between claimants who are

employed at the time of classification and those who are not. 

Additionally, the legislative history makes clear that "wageearning capacity" and "loss of wage-earning capacity" are to be

used for separate and distinct purposes (see Letter from Workers'

Compensation Board, Mar. 9, 2007, Bill Jacket, L 2007, ch 6 at

38-39). Indeed, in establishing the durational limits in

Workers' Compensation Law § 15 (3) (w), the Legislature declined

to use the traditional rate-based definition of wage-earning

capacity to determine the duration of benefits, instead opting to

introduce the term "loss of wage-earning capacity." Simply

stated, "[t]he determination of a claimant's loss of wage[-

earning] capacity is designed to establish duration of benefits,

a finding which is unrelated to the traditional purpose of

2 Unlike wage-earning capacity, which can fluctuate based

on a claimant's employment status, loss of wage-earning capacity

was intended to remain fixed (see Letter from Workers'

Compensation Board, Mar. 9, 2007, Bill Jacket, L 2007, ch 6 at

38-39).
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[Workers' Compensation Law] § 15 (5-a), which is to calculate the

weekly benefit rate" (Employer: Longley Jones Mgt. Corp., 2012 WL

1893410, *3, 2012 NYWCLR [LRP] LEXIS 173, *9 [WCB No. 6070 4882,

May 21, 2012]).

Moreover, it would be unreasonable to read into Workers'

Compensation Law § 15 (3) (w) a minimum loss of wage-earning

capacity of 25% for nonworking claimants simply because the ratebased definition of wage-earning capacity for nonworking

claimants imposes a 75% cap. Were we to do so, similarly

situated claimants would be treated unequally solely on the basis

of whether they were employed at the time of classification (see 

Employer: Longley Jones Mgt. Corp., 2012 WL 1893410 at *3, 2012

NYWCLR [LRP] LEXIS 173 at *9). While the Board has, on occasion,

previously stated that a nonworking claimant's loss of wageearning capacity is the inverse of his or her wage-earning

capacity (see Employer: Waldorf Astoria and ACE American

Insurance Co., 2014 WL 935921, *4, 2014 NY Wrk Comp LEXIS 15, *11

[WCB No. 0080 8695, Mar. 11, 2014]; Employer: Buffalo Auto

Recovery Serv., 2009 WL 5177881, *6-9, 2009 NY Wrk Comp LEXIS

15501, *18, *21, *25, *27 [WCB No. 8070 3905, Nov. 12, 2009]; but

see Employer: FDNY, 2016 WL 4366774, *9-10, 2016 NY Wrk Comp

LEXIS 7729, *24-27 [WCB No. 0993 1570, Aug. 3, 2016]; Employer:

Longley Jones Mgt. Corp., 2012 WL 1893410 at *3, 2012 NYWCLR

[LRP] LEXIS 173 at *9), we note that, in matters of pure

statutory interpretation, we need not defer to the Board's

interpretation (see Roberts v Tishman Speyer Props., L.P., 13

NY3d 270, 285 [2009]; Matter of Canales v Pinnacle Foods Group

LLC, 117 AD3d 1271, 1272 [2014]). Accordingly, as we discern no

conflict between Workers' Compensation Law § 15 (3) (w) (xi) and

(xii) and Workers' Compensation Law § 15 (5-a), we reject

claimant's argument that the Board was prohibited from

determining that she had less than a 25% loss of wage-earning

capacity.

We further conclude that substantial evidence supports the

Board's determination that claimant had a 15% loss of wageearning capacity (see 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]). 

The Board properly considered the record evidence regarding
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claimant's functional abilities, the severity of her impairment

and the physical limitations that prevented her from returning to

work as a nursing assistant (see New York State Guidelines for

Determining Permanent Impairment and Loss of Wage Earning

Capacity at 44, 47-49, 51, 120 [2012]), as well as her young age

and her ongoing efforts to obtain her general equivalency diploma

and medical assistant license (see Matter of Schirizzo v Citibank

NA–Banking, 128 AD3d 1293, 1294 [2015]; Matter of Wormley v

Rochester City Sch. Dist., 126 AD3d 1257, 1258 [2015]; Matter of

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

denied 22 NY3d 852 [2013]). Claimant's remaining argument has

been examined and found to be without merit.

Egan Jr., J.P., Lynch, Devine and Mulvey, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court