                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: February 9, 2017                    523440
________________________________

In the Matter of the Claim of
   ALFONSO SMITH,
                    Appellant,
      v

NEW YORK CITY HOUSING                        MEMORANDUM AND ORDER
   AUTHORITY et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.

JOSEPH A. ROMANO,
                    Appellant.
________________________________


Calendar Date:   January 13, 2017

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

                              __________


      Law Office of Joseph A. Romano, New York City (Joseph A.
Romano of counsel), for appellants.

      Weiss, Wexler & Wornow, PC, New York City (J. Evan Perigoe
of counsel), for New York City Housing Authority and another,
respondents.

                              __________


Peters, P.J.

      Appeal from a decision of the Workers' Compensation Board,
filed December 4, 2015, which ruled that claimant sustained a
permanent partial disability and a 60% loss of wage-earning
capacity and awarded counsel fees.
                                -2-                523440

      In 2007, claimant suffered a work-related injury to his
left ankle and he was awarded workers' compensation benefits.
The claim was later amended to include a consequential injury to
his back. In 2015, a Workers' Compensation Law Judge found that
claimant sustained a permanent partial disability and a loss of
wage-earning capacity of 90%. The Workers' Compensation Law
Judge also awarded counsel fees of $4,300. Upon review, the
Workers' Compensation Board modified by reducing the loss of
wage-earning capacity to 60% and the award of counsel fees to
$3,400. This appeal ensued, raising claims on behalf of claimant
and, with regard to the reduced counsel fees award, his
attorney.1

      In order to fix the duration of benefits in cases such as
this, where a claimant sustains a permanent partial disability
that is not amenable to a schedule award, the Board must
determine the claimant's loss of wage-earning capacity (see
Workers' Compensation Law § 15 [3] [w]; 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]). "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 [the] claimant's age"
(Matter of Roman v Manhattan & Bronx Surface Tr. Operating Auth.,
139 AD3d at 1306 [internal quotation marks and citation omitted];
see Matter of Canales v Pinnacle Foods Group LLC, 117 AD3d 1271,
1273 [2014]).

        Here, the Board credited the testimony of Alan Zimmerman,


    1
        Inasmuch as the issues raised on appeal concern both
claimant and his attorney, the notice of appeal should have also
been filed on behalf of claimant and not solely on behalf of his
attorney (compare Matter of Cedeno v PACOA, 120 AD3d 1458, 1459 n
[2014]; Matter of Wolfe v New York City Dept. of Corr., 112 AD3d
1197, 1198 [2013]). The parties do not raise this issue and
there is no allegation of prejudice. Therefore, we will
disregard the error and treat the appeal as also taken by
claimant (see CPLR 2001).
                              -3-                523440

an orthopedic surgeon who examined claimant on three occasions on
behalf of the employer. Zimmerman testified that claimant
suffers from a class 2, severity A impairment of the lumbar spine
(see New York State Guidelines for Determining Permanent
Impairment and Loss of Wage Earning Capacity, tables 11.1, 18.1
[2012]), as well as a 50% schedule loss of use of the left ankle.
Zimmerman also opined that, although claimant's ability to stand
or walk was limited to approximately 20 minutes at a time, he had
no restrictions as far as sitting and he could perform both
sedentary work and some light duty work within these limitations.
The Board properly considered claimant's functional abilities, as
well as his age, his eleventh-grade education, previous work
experience and his proficiency in the English language.
Deferring to the Board's assessment of credibility, substantial
evidence supports its determination that claimant has a 60% 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 1258-1259; Matter of
Cameron v Crooked Lake House, 106 AD3d 1416, 1416 [2013], lv
denied 22 NY3d 852 [2013]).

      As to the reduction in the counsel fees, "the Board may
approve a fee 'in an amount commensurate with the services
rendered and having due regard for the financial status of the
claimant and whether the attorney . . . engaged in dilatory
tactics or failed to comply in a timely manner with [B]oard
rules. In no case shall the fee be based solely on the amount of
the award'" (Matter of Pavone v Ambassador Transp., Inc., 26 AD3d
645, 646 [2006], quoting 12 NYCRR 300.17 [f]). A fee approved by
the Board will only be disturbed if this Court finds that it is
arbitrary, capricious, unreasonable or otherwise constitutes an
abuse of the Board's discretion (see Matter of Grasso v Brewster
Cent. School Dist., 81 AD3d 1060, 1061 [2011]; Matter of Pavone v
Ambassador Transp., Inc., 26 AD3d at 646-647). Here, the Board
summarily reduced the amount of counsel fees from $4,300 to
$3,400, with no discussion as to services rendered, financial
status of claimant or any dilatory actions by counsel.
Accordingly, we are unable to discern the rationale for the
Board's decision to reduce the fee and, therefore, we must remit
the matter for further findings in that regard.
                              -4-                  523440

     Lynch, Devine, Clark and Aarons, JJ., concur.



      ORDERED that the decision is modified, without costs, by
reversing so much thereof as awarded claimant's counsel $3,400 in
counsel fees; 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
