                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 26, 2015                    518453
________________________________

In the Matter of the Claim of
   GWENDOLYN WORMLEY,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
ROCHESTER CITY SCHOOL DISTRICT
   et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   February 18, 2015

Before:   Peters, P.J., Lahtinen, Garry and Lynch, JJ.

                             __________


      Hamberger & Weiss, Rochester (David P. Kuhn of counsel),
for appellants.

      Eric T. Schneiderman, Attorney General, New York City
(Steven Segall of counsel), for Workers' Compensation Board,
respondent.

                             __________


Lynch, J.

      Appeal from a decision of the Workers' Compensation Board,
filed April 25, 2013, which ruled that claimant had sustained a
causally related loss of earning capacity.

      Claimant, a teaching assistant, injured her lower back when
she slipped and fell at her job in September 2008, and she has
not returned to work. She successfully applied for workers'
compensation benefits and was eventually classified as having
                              -2-                518453

sustained a marked permanent partial disability. In January
2013, a Workers' Compensation Law Judge issued a decision finding
that, among other things, claimant had sustained an 80% loss of
wage earning capacity. The Workers' Compensation Board affirmed,
and the self-insured employer and its third-party administrator
(hereinafter collectively referred to as the employer) now
appeal.

      We affirm. In order to fix the duration of benefits in a
permanent partial disability case that is not amenable to a
schedule award, the Board is obliged to determine a claimant's
"loss of wage-earning capacity" (Workers' Compensation Law § 15
[3] [w]; see Matter of Canales v Pinnacle Foods Group LLC, 117
AD3d 1271, 1273 [2014]). 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] claimant's age'" (Matter of Cameron v
Crooked Lake House, 106 AD3d 1416, 1416 [2013], lv denied 22 NY3d
852 [2013], quoting Employer: Buffalo Auto Recovery Svd, 2009 WL
5177881, *10, 2009 NY Wrk Comp LEXIS 15501, *27 [WCB No. 8070
3905, Nov. 12, 2009]; see Matter of Canales v Pinnacle Foods
Group LLC, 117 AD3d at 1273). Here, while there was dispute as
to how to categorize claimant's disability for workers'
compensation purposes, there is little question that her back
injury prevents her from prolonged sitting, walking, bending or
lifting more than 10 pounds. Claimant further takes several
strong pain medications that leave her unable to concentrate,
cause memory loss, dizziness and blurred vision, and prevent her
from driving or operating any heavy machinery. The record also
reflects that claimant faces numerous challenges to finding
employment, including that she is in her 50s, lacks a high school
diploma, has "middle school" level reading and math skills, and
lacks experience in fields where one with her educational
background could likely find employment. Thus, deferring to the
Board's assessment of credibility, substantial evidence supports
its determination that claimant has lost 80% of her wage-earning
capacity (see Matter of Cameron v Crooked Lake House, 106 AD3d at
1416).

      We have examined the employer's remaining arguments and
have found them to lack merit.
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Peters, P.J., Lahtinen and Garry, JJ., concur.



ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
