                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 29, 2015                    520782
________________________________

In the Matter of the Claim of
   DONALD L. BRADY,
                    Appellant,
      v

NORTHEAST RIGGERS & ERECTORS                 MEMORANDUM AND ORDER
   et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:    September 14, 2015

Before:    Garry, J.P., Egan Jr., Rose and Clark, JJ.

                              __________


      Kirk & Teff, LLP, Kingston (Justin S. Teff of counsel), for
appellant.

      Sullivan Keenan Oliver & Violando, LLP, Albany (Michael D.
Violando of counsel), for Northeast Riggers & Erectors and
another, respondents.

                              __________


Clark, J.

      Appeal from a decision of the Workers' Compensation Board,
filed September 19, 2014, which, among other things, ruled that
claimant did not have a total industrial disability.

      In   March 2012, claimant, a union construction laborer,
suffered   an injury to his back and abdomen. His claim for
workers'   compensation benefits was established for a work-related
injury.    Following a hearing in September 2013, at which the
                              -2-                520782

employer and its workers' compensation carrier sought to
challenge claimant's attachment to the labor market and claimant
sought a finding of a temporary total industrial disability, a
Workers' Compensation Law Judge (hereinafter WCLJ) found that
claimant was attached to the labor market. Directing further
development of the record, the WCLJ also found, among other
things, that claimant had not yet been classified with a
permanent disability and, therefore, the issue of total
industrial disability was premature. This determination was
upheld by the Workers' Compensation Board following appeals by
both claimant and the employer and its carrier. Claimant now
appeals to this Court arguing only that the Board erred in
declining to classify him as having a temporary total industrial
disability. We are unpersuaded by this argument and affirm.

      "A claimant who has a permanent partial disability may
nonetheless be classified as totally industrially disabled where
the limitations imposed by the work-related disability, coupled
with other factors, such as limited educational background and
work history, render the claimant incapable of gainful
employment" (Matter of Rose v Roundpoint Constr., 124 AD3d 1033,
1034 [2015] [internal quotation marks and citations omitted;
emphasis added]; see Matter of Wooding v Nestle USA, Inc., 75
AD3d 1043, 1043 [2010]; see generally Workers' Compensation Law
§ 15 [3]). Whether a claimant suffers from a total industrial
disability is "a question of fact for the Board to resolve and
its determination will not be disturbed if supported by
substantial evidence" (Matter of Sacco v Mast Adv./Publ., 71 AD3d
1304, 1305 [2010]).

      Here, in rejecting claimant's request for classification of
temporary total industrial disability, the Board explained that,
because the permanency of claimant's injury had not yet been
determined, "a finding on total industrial disability is
premature." Contrary to claimant's assertions, we find no legal
basis upon which a classification of temporary total industrial
disability may properly be made absent a prior determination of
permanency (see e.g. Matter of Kucuk v Hickey Freeman Co., Inc.,
78 AD3d 1259, 1260-1261 [2010]; Matter of Sacco v Mast
Adv./Publ., 71 AD3d at 1305; Matter of Guan v CPC Home Attendant
                              -3-                  520782

Program, Inc., 50 AD3d 1218, 1219-1220 [2008]; Matter of Utley v
General Motors Corp., 285 AD2d 843, 843 [2001]). Accordingly, we
agree with the Board that such a determination would be premature
at this juncture.

     Garry, J.P., Egan Jr. and Rose, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
