                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 3, 2016                   522076
________________________________

In the Matter of the Claim of
   JANINE TILL,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

APEX REHABILITATION et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   September 12, 2016

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

                             __________


      Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel),
for appellant.

                             __________


Clark, J.

      Appeal from a decision of the Workers' Compensation Board,
filed June 3, 2015, which ruled, among other things, that
claimant sustained a permanent partial disability and a 15% loss
of wage-earning capacity.

      In 2012, while working as a nursing assistant, claimant
sustained a compensable work-related injury to her back and left
shoulder and was awarded benefits. In 2014, a Workers'
Compensation Law Judge classified claimant as having sustained a
permanent partial disability and a 40% loss of wage-earning
capacity. Upon administrative review, the Workers' Compensation
Board agreed that claimant had sustained a permanent partial
disability, but found that claimant's loss of wage-earning
                               -2-               522076

capacity was 15%.   Claimant appeals.

      Claimant argues that, because Workers' Compensation Law
§ 15 (5-a) limited her wage-earning capacity as a nonworking
claimant to no more than 75% of her "former full time actual
earnings," the Board was statutorily prohibited from determining
that she had less than a 25% loss of wage-earning capacity under
Workers' Compensation Law § 15 (3) (w). She asserts that
Workers' Compensation Law § 15 (3) (w) (xi) and (xii) are in
conflict with Workers' Compensation Law § 15 (5-a) and that, to
reconcile this perceived conflict, we should construe these
provisions as applying only to claimants who are employed at the
time of classification – i.e., those claimants who are not
subject to the 75% restriction imposed by Workers' Compensation
Law § 15 (5-a). For claimant to prevail on her argument, we must
accept the proposition that a nonworking claimant's loss of wage-
earning capacity must always be the inverse of his or her wage-
earning capacity. Mindful of established principles of statutory
construction, and upon our examination of the statutory language
and applicable legislative intent, we conclude that it need not
be.1

      Under well-settled principles of statutory interpretation,
a statute is to be viewed as a whole and "its various sections
must be considered together and with reference to each other"
(People v Mobil Oil Corp., 48 NY2d 192, 199 [1979]; see
McKinney's Cons Laws of NY, Book 1, Statutes §§ 92, 97, 98).
Where a potential conflict exists, all parts of the statute must
be given meaning and effect and, if possible, must be "harmonized
to achieve the legislative purpose" (Sanders v Winship, 57 NY2d
391, 396 [1982]; see Heard v Cuomo, 80 NY2d 684, 689 [1993];
Matter of Lumpkin v Department of Social Servs. of State of N.Y.,
59 AD2d 485, 490 [1977], affd 45 NY2d 351 [1978], appeal
dismissed 439 US 1040 [1978]).


    1
        Our holding in this regard should not be construed as
prohibiting such a result, provided that the Board's finding is
supported by substantial evidence (see e.g. Matter of Rosales v
Eugene J. Felice Landscaping, ___ AD3d ___, ___ [2016] [decided
herewith]).
                              -3-                522076

      As relevant here, in cases of permanent partial disability
that are not amenable to schedule awards, "wage-earning capacity"
is used to determine a claimant's weekly rate of compensation.
Specifically, in such cases, a claimant's rate of compensation is
two thirds of the difference between his or her average weekly
wage and his or her wage-earning capacity (see Workers'
Compensation Law § 15 [3] [w]). Where a claimant is unemployed,
wage-earning capacity is fixed by the Board – subject to a 75%
cap (see Workers' Compensation Law § 15 [5-a]). In contrast,
"loss of wage-earning capacity," a term that was added in 2007 as
part of a comprehensive reform of the Workers' Compensation Law
(see L 2007, ch 6, § 4), is used at the time of classification to
set the maximum number of weeks over which a claimant with a
permanent partial disability is entitled to receive benefits (see
Workers' Compensation Law § 15 [3] [w]).2 For instance, where,
as here, a claimant is found to have sustained a 15% loss of
wage-earning capacity, he or she is entitled to receive benefits
for 225 weeks (see Workers' Compensation Law § 15 [3] [w] [xii]).

      The durational limits imposed by Workers' Compensation Law
§ 15 (3) (w) do not distinguish between claimants who are
employed at the time of classification and those who are not.
Additionally, the legislative history makes clear that "wage-
earning capacity" and "loss of wage-earning capacity" are to be
used for separate and distinct purposes (see Letter from Workers'
Compensation Board, Mar. 9, 2007, Bill Jacket, L 2007, ch 6 at
38-39). Indeed, in establishing the durational limits in
Workers' Compensation Law § 15 (3) (w), the Legislature declined
to use the traditional rate-based definition of wage-earning
capacity to determine the duration of benefits, instead opting to
introduce the term "loss of wage-earning capacity." Simply
stated, "[t]he determination of a claimant's loss of wage[-
earning] capacity is designed to establish duration of benefits,
a finding which is unrelated to the traditional purpose of


    2
        Unlike wage-earning capacity, which can fluctuate based
on a claimant's employment status, loss of wage-earning capacity
was intended to remain fixed (see Letter from Workers'
Compensation Board, Mar. 9, 2007, Bill Jacket, L 2007, ch 6 at
38-39).
                              -4-                522076

[Workers' Compensation Law] § 15 (5-a), which is to calculate the
weekly benefit rate" (Employer: Longley Jones Mgt. Corp., 2012 WL
1893410, *3, 2012 NYWCLR [LRP] LEXIS 173, *9 [WCB No. 6070 4882,
May 21, 2012]).

      Moreover, it would be unreasonable to read into Workers'
Compensation Law § 15 (3) (w) a minimum loss of wage-earning
capacity of 25% for nonworking claimants simply because the rate-
based definition of wage-earning capacity for nonworking
claimants imposes a 75% cap. Were we to do so, similarly
situated claimants would be treated unequally solely on the basis
of whether they were employed at the time of classification (see
Employer: Longley Jones Mgt. Corp., 2012 WL 1893410 at *3, 2012
NYWCLR [LRP] LEXIS 173 at *9). While the Board has, on occasion,
previously stated that a nonworking claimant's loss of wage-
earning capacity is the inverse of his or her wage-earning
capacity (see Employer: Waldorf Astoria and ACE American
Insurance Co., 2014 WL 935921, *4, 2014 NY Wrk Comp LEXIS 15, *11
[WCB No. 0080 8695, Mar. 11, 2014]; Employer: Buffalo Auto
Recovery Serv., 2009 WL 5177881, *6-9, 2009 NY Wrk Comp LEXIS
15501, *18, *21, *25, *27 [WCB No. 8070 3905, Nov. 12, 2009]; but
see Employer: FDNY, 2016 WL 4366774, *9-10, 2016 NY Wrk Comp
LEXIS 7729, *24-27 [WCB No. 0993 1570, Aug. 3, 2016]; Employer:
Longley Jones Mgt. Corp., 2012 WL 1893410 at *3, 2012 NYWCLR
[LRP] LEXIS 173 at *9), we note that, in matters of pure
statutory interpretation, we need not defer to the Board's
interpretation (see Roberts v Tishman Speyer Props., L.P., 13
NY3d 270, 285 [2009]; Matter of Canales v Pinnacle Foods Group
LLC, 117 AD3d 1271, 1272 [2014]). Accordingly, as we discern no
conflict between Workers' Compensation Law § 15 (3) (w) (xi) and
(xii) and Workers' Compensation Law § 15 (5-a), we reject
claimant's argument that the Board was prohibited from
determining that she had less than a 25% loss of wage-earning
capacity.

      We further conclude that substantial evidence supports the
Board's determination that claimant had a 15% loss of wage-
earning capacity (see 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]).
The Board properly considered the record evidence regarding
                              -5-                  522076

claimant's functional abilities, the severity of her impairment
and the physical limitations that prevented her from returning to
work as a nursing assistant (see New York State Guidelines for
Determining Permanent Impairment and Loss of Wage Earning
Capacity at 44, 47-49, 51, 120 [2012]), as well as her young age
and her ongoing efforts to obtain her general equivalency diploma
and medical assistant license (see Matter of Schirizzo v Citibank
NA–Banking, 128 AD3d 1293, 1294 [2015]; Matter of Wormley v
Rochester City Sch. Dist., 126 AD3d 1257, 1258 [2015]; Matter of
Cameron v Crooked Lake House, 106 AD3d 1416, 1416 [2013], lv
denied 22 NY3d 852 [2013]). Claimant's remaining argument has
been examined and found to be without merit.

     Egan Jr., J.P., Lynch, Devine and Mulvey, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
