                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 17, 2016                   522851
________________________________

In the Matter of the Claim of
   GEANNINE MADDOX,
                    Appellant,
      v

BAUMANN SONS BUSES et al.,                  MEMORANDUM AND ORDER
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   October 11, 2016

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

                             __________


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

      Stewart Greenblatt Manning & Baez, Syosett (Luke R.
Tarantino of counsel), for Baumann Sons Buses and another,
respondents.

                             __________


Devine, J.

      Appeal from a decision of the Workers' Compensation Board,
filed July 24, 2015, which ruled, among other things, that
claimant sustained a permanent partial disability and a 40% loss
of wage-earning capacity.

      In June 2009, claimant injured her back while working as a
driver and her subsequent claim for workers' compensation
benefits was established. Thereafter, a Workers' Compensation
Law Judge (hereinafter WCLJ) found that claimant sustained a
                               -2-                522851

permanent partial disability and, after taking into consideration
vocational factors such as age, education and experience, found
that claimant had a loss of wage-earning capacity of 80%. The
WCLJ also modified prior temporary partial disability awards for
the time periods of August 2, 2010 to February 4, 2011, March 16,
2011 to August 12, 2011 and August 3, 2012 to June 10, 2014.
Upon review, the Workers' Compensation Board agreed that claimant
sustained a permanent partial disability, but found that she had
a loss of wage-earning capacity of 40%. The Board also rescinded
the WCLJ's modification of the prior awards. Claimant now
appeals.

      Claimant challenges the Board's determination that she
sustained a loss of wage-earning capacity of 40%. "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'" (Matter of Wormley v Rochester City Sch. Dist., 126
AD3d 1257, 1258 [2015], quoting Workers' Compensation Law § 15
[3] [w]; see Matter of Canales v Pinnacle Foods Group LLC, 117
AD3d 1271, 1273 [2014]). "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 claimant's age" (Matter
of Roman v Manhattan & Bronx Surface Tr. Operating Auth., 139
AD3d 1304, 1306 [2016] [internal quotation marks and citation
omitted]; see Matter of Wormley v Rochester City Sch. Dist., 126
AD3d at 1258).

      Here, claimant's treating orthopedic surgeon issued a
report indicating that claimant's functional capacities at work
included occasionally being able to sit, stand, walk, kneel and
bend, but that she was unable to perform sedentary work. The
report also indicated that claimant was able to drive a vehicle
frequently, however, the surgeon contradicted his report by
testifying that a sedentary job may be appropriate for claimant.1


      1
         Pursuant to the EC-4.3 form, the term "frequently"
refers to the capability of performing a work activity "from
[one-third] to [two-thirds] of the time" and the term
                              -3-                522851

The Board credited the medical opinion as to claimant's ability
to drive frequently and the surgeon's testimony regarding
claimant's ability to perform sedentary work, and, in determining
her loss of wage-earning capacity, considered the fact that
claimant was 37 years old, had a high school education, was
proficient with the English language and had past work experience
as a driver for an ambulette company and as a bus driver (see
Matter of Roman v Manhattan & Bronx Surface Tr. Operating Auth.,
139 AD3d at 1306; New York State Guidelines for Determining
Permanent Impairment and Loss of Wage Earning Capacity at 47-49
[2012]). Deferring to the Board's assessment of credibility and
record evidence, we find that substantial evidence supports its
establishment of a 40% 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).

      Claimant also challenges the Board's rescission of the
WCLJ's modification of the prior awards for temporary partial
disability. The Board rescinded the modification based upon its
belief that the WCLJ improperly modified the awards based upon
the loss of wage-earning capacity, stating that "[a]wards for a
temporary [partial] disability are based upon the medical
impairment, while awards for a permanent disability are based
upon loss of wage[-]earning capacity" (see e.g. Matter of
Franklin v New England Motor Frgt., 142 AD3d 747, 748 [2016]). A
review of the record, however, reveals that the WCLJ found
claimant to have a 75% medical impairment. Notably, the WCLJ
stated at the hearing that the prior temporary awards "have been
modified to the 75 percent medical impairment level" and there is
nothing in the record to indicate that the WCLJ based the
modification of the temporary awards on the finding of an 80%
loss of wage-earning capacity. Inasmuch as "a Board
determination cannot be sustained when it is clearly based on
incorrect facts or an inaccurate reading of the record" (Matter
of LaFlamme v S.S. Elec. Repair Shop, Inc., 12 AD3d 732, 733
[2004] [internal quotation marks and citation omitted]; see


"occasionally" refers to the capability to perform a task "up to
[one-third] of the time."
                              -4-                  522851

Matter of Simpson v New York City Tr. Auth., 136 AD3d 1192, 1193
[2016]), the Board's determination that the WCLJ improperly
modified the prior temporary awards based upon the loss of wage-
earning capacity, and not based upon medical impairment, must be
reversed and the matter remitted to the Board for further
proceedings.

     Peters, P.J., Lynch, Clark and Aarons, JJ., concur.



      ORDERED that the decision is modified, without costs, by
reversing so much thereof as rescinded the modification of the
prior temporary disability awards for the time periods of August
2, 2010 to February 4, 2011, March 16, 2011 to August 12, 2011
and August 3, 2012 to June 10, 2014; 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
