                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 3, 2016                     520448
________________________________

In the Matter of the Claim of
   DONALD J. WOODRUFF,
                    Appellant,
      v

PHELPS SUNGAS, INC., et al.,                MEMORANDUM AND ORDER
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   January 8, 2016

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

                             __________


      Personius, Palmer & Bocek, Elmira (William R. Palmer of
counsel), for appellant.

      Gitto & Niefer, LLP, Binghamton (Shane E. Armstrong of
counsel), for Phelps Sungas, Inc. and another, respondents.

                             __________


Peters, P.J.

      Appeals from two decisions of    the Workers' Compensation
Board, filed April 21, 2014 and May    7, 2014, which, among other
things, ruled that claimant was not    entitled to workers'
compensation benefits subsequent to    December 10, 2009.

      On October 29, 2004, claimant suffered work-related
injuries to his neck and back while working for the employer as a
propane delivery truck driver. He was cleared to return to work
that same day and continued to work for the employer until June
2005, when he was laid off. Claimant subsequently obtained new
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employment as a dumpster truck driver, but he was ultimately
discharged from that employment in October 2007. He thereafter
pursued various employments and, in September 2009, filed a claim
for workers' compensation benefits.

      More than two years after his claim was established,
claimant asserted a claim for reduced earnings subsequent to
December 10, 2009. Following a hearing, a Workers' Compensation
Law Judge (hereinafter WCLJ) issued a September 2012 decision
finding that claimant failed to demonstrate that his reduction in
earnings was causally-related to his work-related injuries.
Thereafter, a hearing was held on the issue of permanency, at the
conclusion of which the WCLJ found, in a decision filed May 6,
2013, that claimant had a permanent partial disability but that
he was not entitled to continuing indemnity benefits because his
loss of earnings was unrelated to his work-related injuries.
Upon review, the Workers' Compensation Board affirmed the
September 2012 decision and modified the May 2013 decision for
reasons not relevant here. Claimant appeals both decisions.

      We affirm. Although evidence of a claimant's work-related
permanent partial disability permits an inference that a
subsequent loss of wages or reduction in earnings is attributable
to his or her disability (see Matter of Zamora v New York
Neurologic Assoc., 19 NY3d 186, 192 [2012]), "a reduced earnings
award may be denied where the reduction in earning capacity
results from age, economic conditions or other factors unrelated
to the disability" (Matter of Millner v Cablevision, 2 AD3d 1146,
1147 [2003] [internal quotation marks and citations omitted]; see
Burns v Varriale, 9 NY3d 207, 216 [2007]; Matter of Launer v Euro
Brokers, 115 AD3d 1130, 1130-1131 [2014], lv denied 23 NY3d 906
[2014]). "Whether reduced earnings are causally related to the
compensable injury is a question of fact for the Board to resolve
and its determination will not be disturbed when supported by
substantial evidence" (Matter of Launer v Euro Brokers, 115 AD3d
at 1131 [citations omitted]; accord Matter of Florentino v Mount
Sinai Med. Ctr., 126 AD3d 1279, 1280 [2015], lv denied 26 NY3d
907 [2015]; see Matter of Tawil v Fallsburg Cent. Sch. Dist., 106
AD3d 1314, 1315 [2013]).
                              -3-                520448

      Here, claimant was laid off from his job with the employer
in June 2005 when the company was experiencing a slow season (see
Matter of Millner v Cablevision, 2 AD3d at 1147). Thereafter, he
was fired from his subsequent job as a dumpster truck driver
after advising his employer that he had to attend his daughter's
birthday party and refusing to take another load. Although
claimant asserted that the real reason he could not take the
additional load was because he was "physically in pain" due to
the effects of his October 2004 injuries, he also testified that,
with the exception of laying a tarp over the dumpster, the work
he was required to do was all performed in the cab of the truck.
Deferring to the Board's assessment of credibility (see Matter of
Friedman v New York City Dept. of Transp., 69 AD3d 1020, 1023
[2010]), substantial evidence supports its determination that
claimant's prior employments ended due to factors unrelated to
his work-related injuries. Accordingly, the burden was upon
claimant to establish that his disability contributed to his
subsequent reduction in earnings (see Matter of Tawil v Fallsburg
Cent. Sch. Dist., 106 AD3d at 1315; Matter of Fisher v Bothar
Constr., 49 AD3d 1042, 1044 [2008]; Matter of O'Shea v Initial
Cleaning Serv., 32 AD3d 592, 593 [2006]).

      In that regard, although claimant's physician indicated in
his December 2009, May 2011 and February 2012 reports that
claimant had a 33% medical impairment, those same reports
concluded that claimant was able to perform "regular duty," with
the only recommended restriction to "get help with the heavier
lifts." Similarly, the various reports of claimant's
chiropractor generated within the relevant time frame indicate
that claimant was working without any restrictions. In view of
the foregoing, the Board's conclusion that claimant's reduced
earnings subsequent to December 10, 2009 were unrelated to his
work-related disability is supported by substantial evidence (see
Matter of Woodworth v Clifton Springs Hosp., 35 AD3d 1062, 1063
[2006]; Matter of Millner v Cablevision, 2 AD3d at 1147; Matter
of Turetzky-Santaniello v Vassar Bros. Hosp., 302 AD2d 706, 708
[2003]).

      Finally, we are unpersuaded that the Board erred in
refusing to consider new evidence submitted in claimant's
supplemental application for Board review. Such application,
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filed more than six months after the filing of the WCLJ's
September 2012 decision sought to be reviewed, was untimely (see
Workers' Compensation Law § 23; 12 NYCRR 300.13 [a], [e] [2];
Matter of Hyland v Matarese, 56 AD3d 841, 843 [2008]). Moreover,
"[a]n application for review which offers new and additional
evidence that was not in the record nor presented to the WCLJ
must state reasons explaining the failure to previously offer
such evidence and it is within the discretion of the Board to
'deny review and refuse to consider such new or additional
evidence if it finds that such evidence could and should have
been presented to the [WCLJ]'" (Matter of Husak v New York City
Tr. Auth., 40 AD3d 1249, 1250 [2007], quoting 12 NYCRR 300.13
[g]; see Matter of Estrella v Broadway 69 Assoc., 79 AD3d 1536,
1537 [2010]; Matter of Cutting v Richard W. Nezelek, Inc., 293
AD2d 829, 831 [2002]). Here, the record belies claimant's
assertion that the employer failed to timely report the accident
to the Board and reflects, instead, that it was claimant who
waited until September 2009 to file a claim for workers'
compensation benefits. While claimant also attributed the delay
to the fact that he was initially unrepresented, he retained an
attorney more than nine months prior to the first hearing in
March 2012 and his application for supplemental review offers no
explanation as to why a claim for reduced earnings going back to
the date of his injury – and evidence in support thereof – was
not offered at that time. Under these circumstances, the Board
did not abuse its discretion in refusing to consider the newly
offered evidence (see Matter of Husak v New York City Tr. Auth.,
40 AD3d at 1250; Matter of Quail v Central N.Y. Psychiatric Ctr.,
291 AD2d 613, 614 [2002]; Matter of Heustis v Teriele, 193 AD2d
934, 935 [1993]).

     Garry, Egan Jr., Devine and Clark, JJ., concur.
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ORDERED that the decisions are affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
