                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: February 9, 2017                    523445
________________________________

In the Matter of the Claim of
   JAMES CURCIO,
                    Appellant,
      v

SHERWOOD 370 MANAGEMENT LLC                  MEMORANDUM AND ORDER
   et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.

JOSEPH A. ROMANO,
                    Appellant.
________________________________


Calendar Date:   January 9, 2017

Before:   McCarthy, J.P., Egan Jr., Lynch, Clark and Mulvey, JJ.

                              __________


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

      William O'Brien, State Insurance Fund, Endicott (Scott B.
Anglehart of counsel), for Sherwood 370 Management LLC and
another, respondents.

                              __________


Mulvey, J.

      Appeal from a decision of the Workers' Compensation Board,
filed December 30, 2015, which ruled that claimant sustained a
permanent partial disability and a 90% loss of wage-earning
capacity and awarded counsel fees.
                              -2-                523445
      Claimant, a building engineer for 27 years, sustained a
compensable work-related injury to his back and neck and was
awarded workers' compensation benefits. Thereafter, a Workers'
Compensation Law Judge (hereinafter WCLJ) classified claimant as
having a permanent total disability and, among other things,
awarded $7,920 in fees to claimant's counsel. On administrative
appeal, the Workers' Compensation Board, among other things,
modified the WCLJ's decision and found that claimant has a
permanent partial disability and a loss of wage-earning capacity
of 90%. The Board sua sponte also reduced the counsel fee award
to $450 due to counsel's failure to properly complete the OC-
400.1 counsel fee application. This appeal ensued.1

      We are unpersuaded by claimant's contention that
substantial evidence does not support the Board's finding that he
is permanently disabled only to a partial extent. "This Court
accords great deference to the Board's resolution of issues
concerning conflicting medical evidence and witness credibility,
and the Board may accept or reject portions of a medical expert's
opinion" (Matter of Mearns v Sunoco, Inc., 77 AD3d 1045, 1046
[2010] [internal quotation marks and citation omitted]; see
Matter of Campbell v Interstate Materials Corp., 135 AD3d 1276,
1277 [2016]). Here, claimant is classified with a class 4,
severity ranking I impairment of the lumbar spine, which, as
noted by the Board, is not equivalent to total disability (see
New York State Guidelines for Determining Permanent Impairment
and Loss of Wage Earning Capacity, table 18.1 [2012]).2 Although


    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
[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).
    2
        The Board noted that the opinion of Paul Kleinman, the
independent medical examiner, "regarding . . . claimant's degree
                              -3-                523445
claimant's physician concluded that claimant was permanently
totally disabled, he acknowledged that claimant continued to
perform daily living activities and was able to drive himself to
medical appointments. The independent medical examiner, Paul
Kleinman, opined that claimant's condition, while permanent, was
a marked partial disability and that claimant could perform full-
time sedentary work with frequent changes in position and other
restrictions. Given the differing medical opinions, we find that
there is substantial evidence to support the Board's conclusion
that claimant's disability is partial – not total – and it will
not be disturbed (see Matter of Roman v Manhattan & Bronx Surface
Tr. Operating Auth., 139 AD3d 1304, 1305 [2016]; Matter of
Campbell v Interstate Materials Corp., 135 AD3d at 1278).

      To the extent that claimant challenges the establishment of
a 90% loss of wage-earning capacity, we find that the Board's
decision is supported by substantial evidence. In determining
loss of wage-earning capacity in cases such as this that are not
amenable to a schedule award, "[t]he 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
at 1306 [internal quotation marks and citations omitted]; see
Matter of Cameron v Crooked Lake House, 106 AD3d 1416, 1416
[2013], lv denied 22 NY3d 852 [2013]). The Board considered
claimant's age of 52, his proficiency in reading and writing, his
limited college education and his employment history consisting
of primarily physical labor for 27 years. While the Board also
credited the opinion of claimant's physician that claimant was
capable of less than sedentary work given his work restrictions,
including his limited ability to occasionally lift, pull and push
five pounds, it also considered claimant's functional abilities
regarding daily living. As the Board considered appropriate
medical and vocational factors, we find no reason to disturb its
finding that his disability deprived him of 90% of his wage-



of impairment [could not] be considered in reaching a conclusion
on medical impairment because his opinion is not in accordance
with the 2012 Guidelines."
                              -4-                523445
earning capacity (see Matter of Rosales v Eugene J. Felice
Landscaping, 144 AD3d 1206, 1207 [2016]; Matter of Wormley v
Rochester City Sch. Dist., 126 AD3d 1257, 1258 [2015]; New York
State Guidelines for Determining Permanent Impairment and Loss of
Wage Earning Capacity § 9.3 [2012]).

      Finally, claimant's counsel contends that the Board erred
in reducing the WCLJ's award of counsel fees based upon counsel's
failure to complete the OC-400.1 fee application form with
respect to dates or time spent on the services rendered. Where
counsel requests a fee in excess of $450, the Board's rules and
regulations provide that an attorney must file a written
application for such fee using form OC-400.1 and that form must
be "accurately completed" (12 NYCRR 300.17 [d] [1]). The form
specifically instructs an attorney to, among other things,
include the dates that the services were rendered and the time
spent.3 Such information, which is also required to be provided
to a claimant, is relevant to the Board's evaluation of the
services rendered (see 12 NYCRR 300.17 [e], [f], [g]). "The
Board may approve counsel fees 'in an amount commensurate with
the services rendered'" (Matter of Kennedy v New York City Dept.
of Corr., 140 AD3d 1572, 1574 [2016], quoting 12 NYCRR 300.17
[f]), and its award will not be disturbed absent a showing that
it is arbitrary and capricious or an abuse of discretion (see
Matter of Kennedy v New York City Dept. of Corr., 140 AD3d at
1574). Here, counsel listed the services rendered, but inserted
"35 hours" for the time spent on the services and did not
indicate any dates upon which the services were performed or the
amount of time spent on each service rendered. Under these
circumstances, we do not find that the Board abused its
discretion or acted in an arbitrary and capricious manner in


    3
        To the extent that our prior decision in Matter of Pavone
v Ambassador Transp., Inc. (26 AD3d 645, 646 [2006]) held that 12
NYCRR 300.17 (f) does not require counsel to record the amount of
time spent rendering legal services, it should not be followed
(see Matter of Fernandez v Royal Coach Lines, Inc.,     AD3d    ,
    n, 2017 NY Slip Op 00368, *2 n [2017]; Matter of Tenecela v
Vrapo,     AD3d    ,     n 2, 2017 NY Slip Op 00367,*2 n 2
[2017].
                              -5-                  523445
finding the OC-400.1 fee application form defective and reducing
the counsel fees to the maximum $450 fee permitted in the absence
of the accurate completion of such application form (see 12 NYCRR
300.17 [d] [1]; [h]; Matter of Kennedy v New York City Dept. of
Corr., 140 AD3d at 1574). We have reviewed counsel's remaining
contentions with regard to the reduction of counsel fees and find
them to be unpersuasive.

     McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
