                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered:   November 3, 2016                519941
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________________________________

In the Matter of the Claim of
   LUIS ROSALES,
                    Respondent,
      v

EUGENE J. FELICE LANDSCAPING                MEMORANDUM AND ORDER
   et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   September 14, 2016

Before:   McCarthy, J.P., Lynch, Rose, Devine and Mulvey, JJ.

                             __________


      William O'Brien, State Insurance Fund, White Plains
(Rudolph Rosa Di Sant of counsel), for appellants.

      Joseph A. Romano, New York City, for Luis Rosales,
respondent.

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

                             __________
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Lynch, J.

      Appeals (1) from a decision of the Workers' Compensation
Board, filed January 16, 2014, which ruled, among other things,
that claimant sustained a permanent partial disability and a 90%
loss of wage-earning capacity, and (2) from two amended decisions
of said Board, filed July 1, 2015 and October 29, 2015, which,
upon reconsideration, among other things, clarified the Board's
prior decision.

      In June 2010, claimant was injured while working as a
landscaper. Consequently, he has not worked since September 2010
and underwent back surgery in October 2010. Thereafter, claimant
filed a claim for workers' compensation benefits. The claim was
first heard in March 2011 before a Workers' Compensation Law
Judge (hereinafter WCLJ), who determined that the claim was valid
and that claimant's average weekly wage was $500. The WCLJ also
determined that claimant suffered a permanent partial class 3,
severity B impairment, which indicates a level one medical
impairment on a six-point scale, level six being total impairment
(see New York State Guidelines for Determining Permanent
Impairment and Loss of Wage Earning Capacity, table 18.1 [2012]).
The WCLJ further found that claimant sustained a permanent
partial disability of 90% after considering various vocational
factors. In particular, claimant testified, through a
translator, that he was 46 years old, was from El Salvador, had
limited English skills, had only completed second grade and had a
work history comprised of manual labor. The WCLJ awarded
benefits at a rate of $300 per week, effectively fixing
claimant's wage-earning capacity at 10%.

      In a sequence of three decisions, culminating in its
October 2015 decision, the Workers' Compensation Board affirmed
the WCLJ decision, concluding that vocational factors may be
considered in calculating the wage-earning capacity of a claimant
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with a permanent partial disability. The employer and its
workers' compensation carrier (hereinafter collectively referred
to as the employer) have appealed all three Board decisions.

      Where, as here, a claimant sustains a permanent partial
disability that is not amenable to a schedule award, the Board is
obligated to fix both the duration of the benefit and the weekly
compensation rate (see Workers' Compensation Law § 15 [3] [w]).
Compensation is payable at a rate of "sixty-six and two-thirds
percent of the difference between the injured employee's average
weekly wages and his or her wage-earning capacity thereafter in
the same employment or otherwise" (Workers' Compensation Law § 15
[3] [w]).1 Durational limits are based on a claimant's "loss of
wage-earning capacity," a phrase added to Workers' Compensation
Law § 15 (3) (w) as part of a comprehensive reform in 2007 (see L
2007, ch 6; Matter of Canales v Pinnacle Foods Group LLC, 117
AD3d 1271, 1273-1274 [2014]). There is no dispute here that the
Board could consider vocational factors in setting claimant's
loss of wage-earning capacity, and we perceive no abuse of
discretion in the Board's setting that loss at 90% – a finding
that yields a maximum benefit duration of 475 weeks (see Workers'
Compensation Law § 15 [3] [w] [iii]; Matter of Roman v Manhattan
& Bronx Surface Tr. Operating Auth., 139 AD3d 1304 [2016]; Matter
of Baczuk v Good Samaritan Hosp., 132 AD3d 1033, 1035 [2015];
Matter of Wormley v Rochester City Sch. Dist., 126 AD3d 1257,
1258 [2015]; Matter of Canales v Pinnacle Foods Group LLC, 117
AD3d at 1273; Matter of Cameron v Crooked Lake House, 106 AD3d
1416 [2013], lv denied 22 NY3d 852 [2013]).

      At issue is whether the Board was also authorized to
consider vocational factors in determining claimant's wage-


    1
        Under this formula, the Board computed claimant's weekly
rate as follows: $500 (average weekly wage) - $50 (10% of average
weekly wage) = $450 ÷ b = $300.
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earning capacity for purposes of computing the rate of
compensation. Under Workers' Compensation Law § 15 (5-a), for a
claimant with no actual earnings, "the [B]oard may in the
interest of justice fix such wage[-]earning capacity as shall be
reasonable, but not in excess of seventy-five per centum of [a
claimant's] former full time actual earnings, having due regard
to the nature of his [or her] injury and his [or her] physical
impairment." The employer maintains that claimant's wage-earning
capacity under this provision should have been based only on his
physical injury or disability without regard to "vocational
deficits" resulting from, among other things, his limited
education, inability to read and write English and his work
history.

      In Matter of Canales v Pinnacle Foods Group LLC (117 AD3d
1271 [2014], supra), we rejected a claimant's contention that
vocational factors could be considered in setting her wage-
earning capacity during the period of her temporary partial
disability. In so holding, we observed "that the term 'loss of
wage-earning capacity' is relevant only to the determination of
the duration of permanent partial disability benefits at the time
of classification, and that its addition to Workers' Compensation
Law § 15 (3) (w) was not intended to alter the Board's reliance
on a claimant's . . . degree of physical impairment to determine
his or her 'wage[-]earning capacity' as that term is used in
Workers' Compensation Law § 15 (5-a)" (id. at 1274). The
employer would have us apply that rule here, emphasizing,
correctly, that Workers' Compensation Law § 15 (5-a) has been
applied to determine a claimant's wage-earning capacity in both
temporary and permanent partial disability cases (see Matter of
Matise v Munro Waterproofing Co., 293 NY 496, 499-500 [1944];
Matter of Canales v Pinnacle Foods Group LLC, 117 AD3d at 1273]).
For the following reasons, we decline to do so.
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      Statutorily, the key distinction between a temporary and
permanent partial disability claim is that the Board is required
to set a durational limit for a non-scheduled permanent
disability (see Workers' Compensation Law § 15 [3] [w]). In
doing so, as discussed above, the Board is authorized to consider
applicable vocational factors when determining a claimant's loss
of wage-earning capacity (see New York State Guidelines for
Determining Permanent Impairment and Loss of Wage Earning
Capacity § 9.3). Where, as in Canales, the claimant has suffered
a temporary partial disability, the Board does not establish a
durational limit, so his or her "loss of wage-earning capacity"
is plainly an extraneous issue. This is a sensible result
because it is expected that one who is temporarily disabled will
be able to return to his or her former or similar employment.

      Here, unlike Canales, claimant suffered a permanent partial
disability, there is no expectation that he will ever return to
his former or similar employment as a laborer, and the Board
necessarily considered vocational factors when it established his
loss of wage-earning capacity. Because the evidence established
that claimant did not earn actual wages, the statute authorized
the Board to "[fix] in the interest of justice . . . such wage[-
]earning capacity as shall be reasonable . . . having due regard
to the nature of his injury and his physical impairment"
(Workers' Compensation Law § 15 [5-a]). With respect to a
permanent partial disability, we do not read the "due regard to"
clause as limiting the standard to an assessment of the physical
disability alone, but rather to emphasize the significance of the
injury in the calculus. Instead, we find that the broad
discretionary language authorized the Board to consider
vocational factors that reflected claimant's true ability to
secure employment, particularly in the absence of evidence to
negate claimant's testimony that his injury contributed to his
loss of wage-earning capacity (see Matter of Haibel v C.G.
Haibel, Inc., 101 AD2d 678, 679 [1984]). Consequently, under the
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circumstances presented, we perceive no error in the Board's
determination to fix claimant's wage-earning capacity based on
the undisputed evidence of his physical disability and loss of
wage-earning capacity resulting from his functional limitations
and vocational impediments (see Matter of Cameron v Crooked Lake
House, 106 AD3d at 1416; Matter of Weinhart v Motors Holding, 245
AD2d 577, 579 [1997]; New York State Guidelines for Determining
Permanent Impairment and Loss of Wage Earning Capacity § 9.3).
Further, because we find that the Board's determination to fix
claimant's wage-earning capacity at 10% was supported by
substantial evidence, we decline to disturb it (see Matter of
Cameron v Crooked Lake House, 106 AD3d at 1416).

     McCarthy, J.P., Rose, Devine and Mulvey, JJ., concur.




      ORDERED that the decision and amended decisions are
affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
