                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 26, 2015                    518637
________________________________

In the Matter of the Claim of
   RANDY WILLIAMS,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
PREFERRED MEAL SYSTEMS et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   February 17, 2015

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

                             __________


      Weber, Gallagher, Simpson, Stapleton, Fires & Newby, New
York City (Naveen M. Nadipuram of counsel), for appellants.

      Eric T. Schneiderman, Attorney General, New York City
(Steven Segall of counsel), for Workers' Compensation Board,
respondent.

                             __________


Devine, J.

      Appeal from a decision of the Workers' Compensation Board,
filed May 29, 2013, which ruled, among other things, that
claimant sustained a permanent total disability.

      Claimant, a driver, suffered injuries to his right knee and
back while making a delivery in 2009. His claim for workers'
compensation benefits was established, and was later amended to
include consequential adjustment disorder. The Workers'
Compensation Board ultimately found that claimant had sustained a
                              -2-                518637

permanent total disability from May 2012 onward. The employer,
workers' compensation carrier and policy administrator
(hereinafter collectively referred to as the employer) now
appeal.

      We affirm. The Board properly rejected the employer's
argument that further proof was needed as to claimant's
vocational and functional capacity. That evidence is used to
"determin[e] 'loss of wage-earning capacity' for the purpose of
setting the duration of a claimant's permanent partial disability
benefits" (Matter of Canales v Pinnacle Foods Group LLC, 117 AD3d
1271, 1272 [2014], quoting Workers' Compensation Law § 15 [3]
[w]; see Workers' Compensation Law § 15 [5-a]). In contrast, a
permanent total disability is established where the medical proof
shows that a claimant "is totally disabled and unable to engage
in any gainful employment" (Matter of VanDermark v Frontier Ins.
Co., 60 AD3d 1171, 1172 [2009]; see Workers' Compensation Law
§ 15 [1]). The duration of benefits is not at issue in the
permanent total disability context for the simple reason that
"there is no expectation that [a claimant found to have such a
disability] will rejoin the work force," and benefits continue
for the remainder of his or her life (Burns v Varriale, 9 NY3d
207, 215 [2007]). There is, accordingly, no need for extensive
evidence of a claimant's vocational and functional capacity when
the medical proof demonstrates that he or she has a permanent
total disability. Inasmuch as the opinions of orthopedists who
have treated and conducted an independent medical examination of
claimant constitute substantial evidence to support the finding
that claimant has such a disability, we perceive no reason to
disturb the Board's determination (see Matter of Malerba v Ameron
Global, Inc., 117 AD3d 1302, 1302-1303 [2014]; Matter of
VanDermark v Frontier Ins. Co., 60 AD3d at 1172).

      We have considered the employer's remaining contention and,
to the extent that it is properly before us, have found it to be
lacking in merit.

     McCarthy, J.P., Egan Jr. and Clark, JJ., concur.
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ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
