                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 6, 2014                   517853
________________________________

In the Matter of the Claim of
   PATRICIA E. GIOIA, Now
   Known as PATRICIA E. WITT,
                    Respondent,
      v

CATTARAUGUS COUNTY NURSING                  MEMORANDUM AND ORDER
   HOME et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   October 9, 2014

Before:   Stein, J.P., Garry, Rose, Lynch and Devine, JJ.

                             __________


      Hamberger & Weiss, Buffalo (Prudence Philbin of counsel),
for appellants.

      Connors & Ferris, LLP, Buffalo (Jason J. Zack of counsel),
for Patricia E. Witt, respondent.

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

                             __________


Stein, J.P.

      Appeal from a decision of the Workers' Compensation Board,
filed February 8, 2013, which, among other things, calculated
claimant's reduced earnings award.
                              -2-                517853

      Claimant injured her back in the course of her employment
as a nurse's aide and has an established workers' compensation
claim based upon that injury. In 2011, claimant filed a request
for further action to address the issues of reduced earnings,
permanency of her disability and wage expectancy. A physician
who conducted an independent medical examination for the employer
concluded that claimant has a moderate, permanent partial
disability. Following a hearing, a Workers' Compensation Law
Judge determined that she had a permanent partial disability and
calculated her weekly compensation rate – i.e., two thirds of the
difference between what her average weekly wage would be absent
injury and her current wage-earning capacity (see Workers'
Compensation Law § 15 [3] [w]), as measured by her degree of
disability. Upon claimant's application for review, the Workers'
Compensation Board increased claimant's degree of disability and
concluded that her wage loss benefits should be based upon her
actual reduced earnings from the delicatessen where she now
works, as opposed to her degree of disability, and adjusted her
weekly awards accordingly. The employer and its workers'
compensation carrier (hereinafter collectively referred to as the
employer) appeal.

      "[B]efore awarding wage replacement benefits in a
nonschedule permanent partial disability case," the Board must
determine "whether a claimant has maintained a sufficient
attachment to the labor market" (Matter of Zamora v New York
Neurologic Assoc., 19 NY3d 186, 191 [2012] [internal quotation
marks and citation omitted]) – i.e., that the claimant's "reduced
earning capacity is due to the disability, not . . . factors
unrelated to the disability" (id. [internal quotation marks and
citations omitted]), such as "'age, [or] general economic
conditions'" (Burns v Varriale, 9 NY3d 207, 216 [2007], quoting
Matter of Meisner v United Parcel Serv., 243 AD2d 128, 130
[1998], lv dismissed 93 NY2d 848 [1999], lv denied 94 NY2d 757
[1999]). Once it is determined that a claimant's reduced earning
capacity remains involuntary and related to his or her permanent
partial disability, "[t]he wage earning capacity of an injured
employee . . . shall be determined by his [or her] actual
earnings" while disabled (Workers' Compensation Law § 15 [5-a];
see Burns v Varriale, 9 NY3d at 216-217). In that regard, the
Court of Appeals has repeatedly explained that, for claimants who
                              -3-                  517853

have demonstrated that they remained attached to the labor
market, "where actual earnings during the period of the
disability are established, wage earning capacity must be
determined exclusively by the actual earnings of the injured
employee without evidence of capacity to earn more or less during
such disability period" (Matter of Matise v Munro Waterproofing
Co., 293 NY 496, 500 [1944]; accord Burns v Varriale, 9 NY3d at
217; Matter of Croce v Ford Motor Co., 307 NY 125, 130 [1954]).

      The employer argues here that the Board should have
considered evidence of claimant's ability to earn more and
awarded her benefits "consistent with her determined loss of wage
earning capacity/degree of disability." This is precisely what
the cases of the Court of Appeals forbid, and we reject the
employer's contrary interpretation of relevant case law.
"[E]vidence of capacity to earn more or less" (Matter of Matise v
Munro Waterproofing Co., 293 NY at 500), which cannot be
considered, includes medical evidence of the claimant's degree of
disability (see id. at 498-499). The Board noted claimant's
undisputed testimony regarding her employer's accommodation of
her medical restrictions, her extensive search for additional
work and her doctor's instruction that she limit herself to part-
time work. After concluding that claimant had not voluntarily
withdrawn from the labor market, the Board correctly determined
that claimant's award should be based on her actual earnings as
long as she remained attached to the labor market, and calculated
her award on that basis. Inasmuch as the Board's determination
in that regard is supported by substantial evidence, we decline
to disturb it (see Matter of Meisner v United Parcel Serv., 243
AD2d at 130-131; cf. Matter of Korczyk v City of Albany, 264 AD2d
908, 910 [1999]).

     Garry, Rose, Lynch and Devine, JJ., concur.
                              -4-                  517853

      ORDERED that the decision is affirmed, with costs to
claimant.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
