                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: November 17, 2016                    522267
________________________________

In the Matter of the Claim of
   VINCENT PRAVATO,
                    Appellant,
      v

TOWN OF HUNTINGTON et al.,                   MEMORANDUM AND ORDER
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:    October 13, 2016

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

                              __________


      Turley Redmond Rosasco & Rosasco, LLP, Ronkonkoma (John F.
Clennan of counsel), for appellant.

      Jones Jones, LLC, New York City (Katherine Caracappa of
counsel), for Town of Huntington and another, respondents.

                              __________


Rose, J.

      Appeal from a decision of the Workers' Compensation Board,
filed November 4, 2015, which ruled, among other things, that
claimant sustained a permanent partial disability and a 40% loss
of wage-earning capacity.

      Claimant worked for the Town of Huntington for
approximately 32 years, initially as a laborer and later as
sanitation truck driver. On January 3, 2011, he injured his back
while emptying a garbage can into the hopper of a sanitation
truck. His claim for workers' compensation benefits was
                              -2-                522267

thereafter established for accident, notice and causal
relationship for an injury to his back. Although claimant
returned to work briefly following his injury, he remained out of
work from January 10, 2011 until January 2, 2012. He returned to
work on January 3, 2012 and continued working until May 18, 2012
when he resigned from his position at the age of 57.

      Following hearings in July 2012 and October 2012, claimant
was awarded temporary total disability benefits for various time
periods, including those that postdated his resignation. The
Workers' Compensation Board upheld these awards, finding that
claimant's disability contributed to his decision to resign and
that the awards for temporary total disability were properly
made. The employer's application for full Board review was
denied.

      In January 2015, a permanency hearing was conducted and a
Workers' Compensation Law Judge (hereinafter WCLJ), among other
things, classified claimant with a permanent partial disability
(see Workers' Compensation Law § 15 [3] [w]), found that he had a
loss of wage-earning capacity of 70% and was attached to the
labor market, and made awards accordingly. On appeal, a panel of
the Workers' Compensation Board determined that claimant was
capable of performing sedentary work and had a loss of wage-
earning capacity of only 40%.1 The Board further found that
claimant was not attached to the labor market at the time of the
classification. Consequently, the Board modified the WCLJ's
awards. Claimant now appeals.

      Claimant argues, among other things, that the medical
evidence does not support the Board's finding that he is capable
of performing sedentary work and that this unduly impacted its
assessment of his loss of wage-earning capacity, leading it to
conclude that the loss was only 40%. Upon reviewing the record
before us, we must agree. It is well settled that, in
determining a claimant's "loss of wage-earning capacity" for


     1
         The Board panel also found that claimant had a wage-
earning capacity of 60% (see Workers' Compensation Law § 15 [5-
a]).
                              -3-                522267

purposes of establishing the duration of permanent partial
disability benefits not amenable to a schedule award (Workers'
Compensation Law § 15 [3] [w]), "[t]he Board relies upon various
factors . . ., including the nature and degree of the work-
related permanent physical and/or mental impairment, work
restrictions, [and the] claimant's age" (Matter of Wormley v
Rochester City Sch. Dist., 126 AD3d 1257, 1258 [2015] [internal
quotation marks and citations omitted]; see Canales v Pinnacle
Foods Group. LLC, 117 AD3d 1271, 1273 [2014]; Matter of Cameron v
Crooked Lake House, 106 AD3d 1416, 1416 [2013], lv denied 22 NY3d
852 [2013]).

      Here, there was no medical testimony presented at the
hearing concerning the permanency of claimant's impairment or the
extent of his physical limitations. Rather, the only medical
evidence presented was the reports of Thomas Dowling, claimant's
treating orthopedist, and Robert Moriarty, the orthopedist who
conducted an independent medical examination. Both of these
physicians categorized claimant as having a class C condition of
the lumbar spine with a severity rating of B under the applicable
guidelines (see New York State Guidelines for Determining
Permanent Impairment and Loss of Wage Earning Capacity at 120
[2012]). Dowling outlined claimant's many physical limitations,
particularly with regard to lifting, pulling, sitting, standing,
walking, driving a motor vehicle and operating machinery. In his
detailed report, he opined that claimant's exertional ability was
such that he could not perform his prior work activities with
restrictions and was unable to perform even sedentary work.
Moriarty acknowledged the limitations in claimant's ability to
lift and push or pull more than 25 pounds, as well as his
inability to sit or stand for prolonged periods of time. Unlike
Dowling, however, he did not provide an opinion on claimant's
exertional ability or specify the type of work that claimant
could perform, be it sedentary or otherwise, other than stating
in a conclusory fashion that claimant could work in a "modified
duty capacity."

      The WCLJ clearly credited Dowling's opinion that claimant
was incapable of performing even sedentary work in determining,
after also considering claimant's age, limited vocational skills
and high school education, that he had a 70% loss of wage-earning
                              -4-                522267

capacity. There is, however, a lack of competent medical
evidence in the record to support the Board's contrary finding
that claimant could, in fact, perform sedentary work. Inasmuch
as this was one of the factors considered by the Board in
determining that claimant had a 40% loss of wage-earning capacity
(see Workers' Compensation Law § 15 [3] [w]), substantial
evidence does not support its decision in this regard.2 Contrary
to the employer's claim, this is not a case in which the Board
simply chose to credit a conflicting medical opinion (compare
Matter of Roman v Manhattan & Bronx Surface Tr. Operating Auth.,
139 AD3d 1304, 1305 [2016]).

      Claimant also contends that the Board erred in concluding
that he was not attached to the labor market as of January 15,
2015 when he was classified as permanently partially disabled.
We note that labor market attachment is a factual issue for the
Board to resolve and its determination in this regard will be
upheld if supported by substantial evidence (see Matter of Zamora
v New York Neurologic Assoc., 19 NY3d 186, 192-193 [2012];
Matter of Rothe v United Med. Assoc., 18 AD3d 1093, 1094 [2005]).
Notably, it is incumbent upon a claimant to demonstrate
"attachment to the labor market with evidence of a search for
employment within medical restrictions" (Matter of Cole v
Consolidated Edison Co. of N.Y. Inc., 125 AD3d 1084, 1085 [2015];
see Matter of Winters v Advance Auto Parts, 119 AD3d 1041, 1042
[2014]; Matter of Bobbitt v Peter Charbonneau Constr., 85 AD3d
1351, 1351 [2011]).

      Claimant testified at the January 2015 hearing that, for
the past 1½ to 2 years, he attempted to find work through the
Department of Labor's One Stop Career Center (hereinafter One
Stop), which he last visited about 2½ to 3 weeks before the
hearing. He indicated that he took classes on preparing a
resume, used the computer to search for jobs and contacted
prospective employers by telephone, but did not have any success


     2
         To the extent that the same factor was considered by the
Board in determining that claimant had a wage-earning capacity of
60%, this part of its decision is also not supported by
substantial evidence.
                              -5-                522267

due to his physical restrictions. He admitted that, since
October 2014, he had not submitted any job applications, had not
gone on any job interviews and had made only one visit to One
Stop for about an hour and a half. He stated that he had
submitted a total of 10 job applications, all for driving
positions, from the time that he resigned from his job.
Furthermore, claimant related that there were a few occasions
when prospective employers contacted him with regard to his
applications, but he failed to elaborate or provide specific
details. In view of the foregoing, there is little to suggest
that claimant searched for suitable employment that was
consistent with his medical restrictions during the time that he
participated in the job search at One Stop. Furthermore, by his
own testimony, it does not appear that he was diligently engaged
in an active search for employment through One Stop at the time
of the January 2015 hearing (see e.g. Employer: American Axle,
2010 WL 438153, *4-5, 2010 NY Work Comp LEXIS 2560, *12 [WCB No.
8030 3659, Feb. 4, 2010]). Accordingly, we conclude that
substantial evidence supports the Board's finding that claimant
was not attached to the labor market as of January 15, 2015 (see
Matter of Rothe v United Med. Assoc., 18 AD3d at 1094; compare
Matter of Cole v Consolidated Edison Co. of N.Y. Inc., 125 AD3d
at 1085). We have considered claimant's remaining arguments and
find them to be unavailing.

     Garry, J.P., Egan Jr., Devine and Mulvey, JJ., concur.
                              -6-                  522267

      ORDERED that the decision is modified, without costs, by
reversing so much thereof as determined that claimant sustained a
40% loss of wage-earning capacity and had a wage-earning capacity
of 60%; matter remitted to the Workers' Compensation Board for
further proceedings not inconsistent with this Court's decision;
and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
