                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 19, 2017                   522261
________________________________

In the Matter of the Claim of
   DANIEL MARTONE,
                    Appellant,
      v

NIAGARA FRONTIER TRANSPORTATION             MEMORANDUM AND ORDER
   AUTHORITY-METRO et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   December 13, 2016

Before:   Peters, P.J., Garry, Rose, Devine and Mulvey, JJ.

                             __________


      Losi & Gangi, PC, Buffalo (Thorice M. Jacobs of counsel),
for appellant.

      Hamberger & Weiss, Buffalo (Kristin M. Machelor of
counsel), for Niagara Frontier Transportation Authority-Metro and
another, respondents.

                             __________


Mulvey, J.

      Appeal from a decision of the Workers' Compensation Board,
filed January 30, 2015, which ruled, among other things, that
claimant sustained a permanent partial disability and a 75% loss
of wage-earning capacity.

      In 2005, claimant, a bus driver, sustained a compensable
work-related injury to his neck and back and was awarded workers'
compensation benefits. In 2007, claimant established a second
                              -2-                522261

work-related claim to his low back and his disability was
apportioned 75% to the 2005 accident and 25% to the 2007
accident. Claimant underwent lumbar spine surgery in 2010.
Thereafter, due to claimant's continued pain, a hearing on the
issue of the degree of permanency and loss of wage earning
capacity was held in 2014. At the conclusion of that hearing,
the Workers' Compensation Law Judge ruled that claimant was
permanently totally disabled. The Workers' Compensation Board
modified that decision and found that, based upon a review of the
medical evidence and consideration of relevant factors, claimant
has a permanent partial disability and exhibits a 75% loss of
wage-earning capacity. Claimant appeals.

      Claimant contends that the Board's finding that he was
permanently disabled only to a partial degree is not supported by
substantial evidence. We disagree. Indeed, the record
establishes that claimant suffers from, among other things,
chronic pain syndrome as a result of the work-related injuries
and that he was medically assessed with a class 4 impairment,
severity ranking between D and F. However, medical evidence
reflects that, to some extent, claimant exhibits submaximal
efforts with regard to his recovery. Specifically, in discussing
claimant's role of getting better, claimant's physician noted
that claimant "need[ed] to move beyond his level of pain and
focus on getting back function and increased activity." Further,
an independent medical examiner noted claimant's high dosages of
medication, which were "well beyond the recommendation of the
[New York State] Medical Treatment Guidelines," and also noted
claimant's "strong symptom magnification," subjective complaints
and symptoms and positive Waddell maneuvers, as well as
claimant's ability to ambulate with relative ease with the use of
the walker. In view of the foregoing, the Board's finding that
claimant was not totally disabled will not be disturbed (see
Matter of Roman v Manhattan & Bronx Surface Tr. Operating Auth.,
139 AD3d 1304, 1305-1306 [2016]).

      Furthermore, substantial evidence supports the Board's
finding that claimant had a 75% loss of wage-earning capacity
(see Matter of Till v Apex Rehabilitation, 144 AD3d 1231, 1234
[2016]). The Board must determine a claimant's loss of wage-
earning capacity in order to fix the duration of benefits where,
                              -3-                  522261

as here, there is a non-schedule permanent partial disability
award (see Matter of Roman v Manhattan & Bronx Surface Tr.
Operating Auth, 139 AD3d at 1306). The Board considered the
medical assessments with respect to claimant's impairment and his
work restrictions, as well as his ability to ambulate with a
walker and perform some daily living activities. The Board also
reviewed aggravating factors such as claimant's age, level of
education and work experience. Deferring to the Board's
credibility assessments, we find no basis to disturb the Board's
finding that claimant has a loss of wage-earning capacity of 75%
(see Matter of Till v Apex Rehabilitation, 144 AD3d at 1234;
Matter of Roman v Manhattan & Bronx Surface Tr. Operating Auth,
139 AD3d at 1306).

     Peters, P.J., Garry, Rose and Devine, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
