                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 2, 2015                      520042
________________________________

In the Matter of SCOTT EMPARA,
                    Appellant,
      v

NEW ROCHELLE SCHOOL DISTRICT                MEMORANDUM AND ORDER
   et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   June 5, 2015

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

                             __________


     Annette G. Hasapidis, South Salem, for appellant.

      Cherry, Edson & Kelly, LLP, Tarrytown (Ralph E. Magnetti of
counsel), for New Rochelle School District and another,
respondents.

                             __________


Egan Jr., J.

      Appeals (1) from a decision of a panel of the Workers'
Compensation Board, filed August 21, 2013, which ruled that
claimant was not entitled to an increase in the schedule loss of
use, and (2) from a decision of the full Board, filed October 30,
2014, which adhered to the Board panel's decision.

      Claimant, an electrician, sustained a compensable work-
related injury in 2003 and, based upon the medical evidence
presented, the parties stipulated to a 37.5% schedule loss of use
of claimant's left leg. Claimant sustained another injury in
                              -2-                520042

2009 that resulted in arthroscopic surgery on his left knee and,
based upon the opinion of his orthopedic surgeon that claimant
had reached maximum medical improvement and suffered a permanent
impairment of 40% to his left leg, claimant sought additional
workers' compensation benefits. By decision dated November 27,
2012, a Workers' Compensation Judge (hereinafter WCLJ)
determined, without explanation or any indication as to whether
the prior schedule loss of use was considered, that claimant
sustained a 20% loss of use of his left leg that was causally
related to the 2009 accident. The matter was continued for,
among other things, consideration of an award of compensation.
By decision dated January 22, 2013, the WCLJ awarded benefits
based upon the 20% loss of use of claimant's left leg; the
employer objected to the award in that it did not consider the
previous 37.5% schedule loss of use in connection with the 2003
accident.

      Thereafter, the employer appealed the January 22, 2013 WCLJ
decision, challenging the schedule loss of use award. Claimant
opposed, claiming that the appeal was untimely given that the
November 27, 2012 decision – not the January 22, 2013 decision –
was final with regard to the issue of claimant's schedule loss of
use for the 2009 accident. Ultimately, the Workers' Compensation
Board, upon full Board review, rejected claimant's challenge to
the timeliness of the appeal and reversed the WCLJ's decision,
finding that claimant was not entitled to any award for the 2009
injury inasmuch as there was no increased schedule loss of use of
the left leg greater than that previously awarded in 2003. These
appeals by claimant ensued.1

      We are unpersuaded by claimant's contention that the Board
erred in finding the employer's appeal to be timely. Although
the WCLJ's November 27, 2012 decision found that claimant had
sustained a schedule loss of use in connection with the 2009
injury, the WCLJ did so without explanation or any indication as


    1
        The Board panel's August 21, 2013 decision was superceded
by the decision of the full Board, and claimant's appeal from the
Board panel decision must be dismissed (see Matter of Winters v
Advanced Auto Parts, 119 AD3d 1041, 1043 n [2014]).
                              -3-                520042

to whether the prior award of 37.5% schedule loss of use was to
be considered in calculating a compensation award. As noted by
the Board, it was unclear from the November 27, 2012 decision
whether any award would be made to claimant in light of the issue
of the prior schedule loss of use award. Under the particular
circumstances of this case, and given the ambiguity in the WCLJ's
November 27, 2012 decision regarding the applicability of the
prior schedule loss of use and whether apportionment would be
applied to the ultimate award in connection with the current
claim, we cannot say that the Board's decision to grant the
employer's application for review was arbitrary and capricious or
an abuse of discretion (see generally Matter of You Cai Zhang v
Tony's Marble & Granite Supply Corp., 95 AD3d 1510, 1511 [2012];
Matter of Hiser v Richmor Aviation, Inc., 52 AD3d 915, 916
[2008]).

      Turning to the merits, "[w]hether a condition warrants a
schedule loss award or an award of continuing disability benefits
is a question of fact for resolution by the Board, and its
determination will be upheld if supported by substantial
evidence" (Matter of Kondylis v Alatis Interiors Co., Ltd., 116
AD3d 1184, 1185 [2014] [internal quotation marks and citations
omitted]). As noted by the Board, a schedule award is not given
for an injury, but for the residual physical and functional
impairments (see State of New York Workers' Compensation Board
Medical Guidelines, at 4 [June 1996]). Here, the independent
medical examiner testified that, although the guidelines provide
for a 10% schedule loss of use, his examination of claimant
revealed no atrophy, no instability and no loss of motion.
"[W]hile the guidelines present useful criteria, the ultimate
determination as to the degree of disability rests with the
Board" (Matter of Carlucci v Omnibus Print. Co., Inc., 68 AD3d
1259, 1260 [2009]). Given the foregoing medical testimony,
substantial evidence supports the Board's finding that there was
no new and greater increase in the schedule loss of use of the
left leg related to the 2009 accident. Claimant's remaining
contentions, to the extent not specifically discussed herein,
have been reviewed and found to be without merit.

     McCarthy, J.P., Lynch and Devine, JJ., concur.
                              -4-                  520042

      ORDERED that the appeal from the August 21, 2013 decision
is dismissed, without costs.

      ORDERED that the October 30, 2014 decision is affirmed,
without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
