State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 26, 2015 519160 

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In the Matter of the Claim of 

NATASHA FLORENTINO,

Appellant,

v

MOUNT SINAI MEDICAL CENTER 

et al., MEMORANDUM AND ORDER

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

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Calendar Date: February 19, 2015

Before: Peters, P.J., McCarthy, Rose and Clark, JJ.

__________

Geoffrey Schotter, New York City, for appellant.

Gorman & Rankin, PC, New York City (David Sanua, New York

City, of counsel), for Mount Sinai Medical Center and others,

respondents.

__________

McCarthy, J.

Appeal from a decision of the Workers' Compensation Board,

filed August 16, 2013, which ruled that claimant was not entitled

to an award of reduced earnings benefits for 2011.

Claimant worked as an administrative assistant for the

employer, and applied for workers' compensation benefits after

developing carpal tunnel syndrome. Her claim was established for

a work-related injury to her neck, upper back, both shoulders and

hands. A Workers' Compensation Law Judge classified claimant
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with a permanent partial disability in January 2011, noting that

she could obtain reduced earnings benefits if she returned to

work and earned less than her full wages because of her

disability (see Workers' Compensation Law § 15 [3] [v], [w]). 

Claimant thereafter sought reduced earnings benefits for all of

2011. The Workers' Compensation Board rejected her application,

finding that the reduction in her earnings did not flow from her

disability. Claimant now appeals.

We affirm. Contrary to claimant's contention, because this

is "a non-schedule permanent partial disability case where an

involuntary withdrawal has not been established, . . . [she]

bears the burden of demonstrating that . . . her reduced earning

capacity is due to the disability and not to unrelated factors"

(Matter of Launer v Euro Brokers, 115 AD3d 1130, 1130-1131

[2014], lv denied 23 NY3d 906 [2014]; see Matter of Zamora v New

York Neurologic Assoc., 19 NY3d 186, 191-192 [2012]). The

question of "[w]hether reduced earnings are causally related to

the compensable injury is a [factual one] for the Board to

resolve and its determination will not be disturbed when

supported by substantial evidence" (Matter of Launer v Euro

Brokers, 115 AD3d at 1131; see Matter of Tawil v Fallsburg Cent.

School Dist., 106 AD3d 1314, 1315 [2013]).

Claimant testified that she spent over 40 hours a week

completing her Master's degree, which she accomplished in May

2011. She further spent an average of 10 to 15 hours a week for

the entire year attempting to find a distributor for a film that

she had produced and, thereafter, to market it. She was not

looking for additional work for much of 2011 as a result of these

endeavors, but secured a post as an adjunct lecturer that began

in August 2011. To the extent that claimant's testimony

indicated that she wanted more substantial employment in her

field, there is no indication that her inability to find such a

position was connected to her disability. Thus, substantial

evidence supports the Board's determination that the reduction in

claimant's 2011 earnings did not flow, even in part, from her

disability (see Matter of Tawil v Fallsburg Cent. School Dist.,

106 AD3d at 1315-1316; Matter of Turetzky-Santaniello v Vassar

Bros. Hosp., 302 AD2d 706, 707-708 [2003]; see also Matter of

Zamora v New York Neurologic Assoc., 19 NY3d at 192).
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Peters, P.J., Rose and Clark, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court