                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: August 25, 2016                   521983
________________________________

In the Matter of the Claim of
   JAMES FRANKLIN,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

NEW ENGLAND MOTOR FREIGHT
   et al.,
                    Respondents.

WORKERS COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   August 18, 2016

Before:   Garry, J.P., Egan Jr., Devine, Mulvey and Aarons, JJ.

                             __________


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

                             __________


Mulvey, J.

      Appeal from a decision of the Workers' Compensation Board,
filed April 14, 2015, which ruled, among other things, that
claimant sustained a causally-related loss of wage-earning
capacity.

      In June 2012, claimant, a tractor-trailer truck driver,
sustained a work-related injury to his lower back while
attempting to lift the rear door of his trailer to unload
freight. He thereafter applied for and received workers'
compensation benefits for the initial period of total disability.
Claimant returned to work in January 2013, but was unable to
continue working after October 11, 2013 after experiencing pain
                              -2-                521983

in his lower back and left knee while loading and unloading
freight for the employer on that day. In May 2014, a Workers'
Compensation Law Judge found that the October 2013 injury to
claimant's lower back was a recurrence of the June 2012 injury,
classified claimant as having sustained a moderate temporary
partial disability and found that claimant, when taking into
consideration his vocational and educational background, had
sustained a 75% loss of wage-earning capacity subsequent to
January 13, 2014. Upon review, the Workers' Compensation Board
agreed that claimant had sustained a causally-related disability,
but found that vocational factors may not be taken into account
when making a determination of a temporary disability and,
accordingly, reduced the award of benefits to reflect the
moderate temporary disability rate. Claimant now appeals.

      We affirm. The Board properly rejected claimant's argument
that the Board may consider non-medical and vocational factors in
determining his wage-earning capacity for the purpose of setting
the compensation rate for his temporary disability. Under the
Workers' Compensation Law, "[f]or both temporary and permanent
partial disabilities, the wage earning capacity of a claimant
with no actual earnings is to be set by the Board at a reasonable
level not greater than 75% of the claimant's previous full-time
earnings, having due regard to the nature of his or her physical
impairment" (Matter of Canales v Pinnacle Foods Group LLC, 117
AD3d 1271, 1273 [2014] [internal quotation marks, brackets and
citations omitted]; see Workers' Compensation Law § 15 [5-a]).
Workers' Compensation Law § 15 (5-a) includes "no reference to
vocational factors" (Matter of Canales v Pinnacle Foods Group
LLC, 117 AD3d at 1273). Indeed, we have previously explained
that "[v]ocational and functional considerations, such as a
claimant's age, education, training, experience, restrictions and
related factors, are appropriately taken into account with
respect to loss of wage-earning capacity only as they are
relevant to the duration of a claimant's permanent partial
disability benefits" (Matter of Baczuk v Good Samaritan Hosp.,
132 AD3d 1033, 1035 [2015]; see Workers' Compensation Law § 15
[3] [w]; Matter of Wormley v Rochester City Sch. Dist., 126 AD3d
1257, 1258 [2015]; Matter of Williams v Preferred Meal Sys., 126
AD3d 1259, 1259 [2015]; Matter of Canales v Pinnacle Foods Group
LLC, 117 AD3d at 1273-1274; see also Employer: Longley Jones Mgt.
                              -3-                  521983

Corp., 2012 WL 1893410, 2012 NY Wrk Comp LEXIS 173 [WCB No. 6070
4882, May 21, 2012]; Employer: Buffalo Auto Recovery Serv., 2009
WL 5177881, 2009 NY Wrk Comp LEXIS 15501 [WCB No. 8070 3905, Nov.
12, 2009]; New York Workers' Compensation Handbook § 5.31 [1]
[c]; [2]). Accordingly, as the record medical evidence
established that claimant had a temporary partial disability for
the time period in question and that permanency had not yet been
established, the Board's decision is supported by substantial
evidence and will not be disturbed (see Matter of Canales v
Pinnacle Foods Group LLC, 117 AD3d at 1274; Matter of Hallarman v
Hallarman & Hallarman, 124 AD2d 458, 460 [1986]; New York State
Guidelines for Determining Permanent Impairment and Loss of Wage
Earning Capacity at 7, 44, 47-48 [2012]; cf. Matter of Baczuk v
Good Samaritan Hosp., 132 AD3d at 1035).

     Garry, J.P., Egan Jr., Devine and Aarons, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
