                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 9, 2017                   522905
________________________________

In the Matter of the Claim of
   JOHN BARRETT,
                    Claimant,
      v

NEW YORK CITY DEPARTMENT OF                 MEMORANDUM AND ORDER
   TRANSPORTATION,
                    Appellant.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   January 13, 2017

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

                             __________


      Zachary W. Carter, Corporation Counsel, New York City (Paul
M. Zaragoza of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, New York (Donya
Fernandez of counsel), for Workers' Compensation Board,
respondent.

                             __________


Devine, J.

      Appeal from a decision of the Workers' Compensation Board,
filed June 22, 2015, which ruled, among other things, that
claimant sustained a 25% loss of wage-earning capacity.

      Claimant was injured in a work-related motor vehicle
accident in 2011 and was awarded workers' compensation benefits.
In April 2014, claimant returned to work. In a decision filed in
July 2014, a Workers' Compensation Law Judge (hereinafter WCLJ)
                              -2-                522905

classified claimant as having a permanent partial disability and
a loss of wage-earning capacity of 25%. The WCLJ found that no
awards of compensation were due at that time since claimant had
returned to work at full wages, but that, should that situation
change, he would be entitled to a maximum of 250 weeks of
benefits based upon his 25% loss of wage-earning capacity. Upon
review, the Workers' Compensation Board affirmed the WCLJ's
determination and the employer appeals.

      We affirm. The employer argues that claimant's
compensation must be calculated based upon his wage-earning
capacity pursuant to Workers' Compensation Law § 15 (5-a) and
that, because he was working at full wages, his wage-earning
capacity was 100% at the time of classification and that the
finding of a 25% loss of wage-earning capacity was accordingly
unlawful.

      The term "loss of wage-earning capacity" was added in 2007
as part of the reform of the Workers' Compensation Law (see
Workers' Compensation Law § 15 [3] [w], as added by L 2007, ch 6,
§ 4), and "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" (Matter of
Till v Apex Rehabilitation, 144 AD3d 1231, 1233 [2016]). In
contrast, wage-earning capacity is used to determine a claimant's
weekly rate of compensation (see Workers' Compensation Law § 15
[5-a]). As this Court recently explained in detail, "the
legislative history makes clear that 'wage-earning capacity' and
'loss of wage-earning capacity' are to be used for separate and
distinct purposes" (Matter of Till v Apex Rehabilitation, 144
AD3d at 1233). Indeed, "[u]nlike wage-earning capacity, which
can fluctuate based on the claimant's employment status, loss of
wage-earning capacity was intended to remain fixed" (id. at 1233
n 2). In light of the separate and distinct purposes for the
calculation of a loss of wage-earning capacity and the wage-
earning capacity, the Board was free to establish the duration of
claimant's benefits by classifying him with a 25% loss of wage-
earning capacity in order to set a fixed durational limit on
potential benefits.

     Peters, P.J., Lynch, Clark and Aarons, JJ., concur.
                        -3-                  522905

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
