                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 26, 2015                    518747
________________________________

In the Matter of the Claim of
   EUGENE LEVITSKY,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
GARDEN TIME, INC., et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   February 19, 2015

Before:   Peters, P.J., McCarthy, Rose and Clark, JJ.

                             __________


      Erwin, McCane & Daly, Albany (Kimberly I. Gould of
counsel), for appellant.

      Walsh & Hacker, Albany (Kelly B. Dean of counsel), for
Garden Time, Inc. and another, respondents.

                             __________


Clark, J.

      Appeal from a decision of the Workers' Compensation Board,
filed June 12, 2013, which ruled that claimant was entitled to a
schedule loss of use award and that apportionment applied to that
award.

      Claimant suffered a work-related injury to his right
shoulder while lifting a stove in November 2009 and was awarded
workers' compensation benefits. X rays and an MRI showed, among
other things, a severe degenerative glenohumeral joint due to
arthritis, and he had shoulder surgery in January 2011. At a
                              -2-                518747

hearing on the issues of schedule loss of use (hereinafter SLU)
and apportionment at which claimant testified, the workers'
compensation carrier's consultant, Edwin Mohler, and claimant's
treating surgeon, Shankar Das, agreed that claimant had an SLU of
his right shoulder of between 60% and 65%. Mohler, who the
Workers' Compensation Board credited, concluded that claimant had
a 60% SLU of which 10% is attributable to the 2009 injury, which
he conceded aggravated claimant's degenerative condition; he
attributed the remainder of the SLU primarily to claimant's
progressive degenerative arthritis and, to a lesser extent that
he did not quantify, to a 1981 work-related shoulder injury
sustained while claimant was a police officer. A Workers'
Compensation Law Judge determined that the SLU award should be
apportioned 10% to the 2009 injury and the remainder to his
preexisting conditions. The Board upheld that determination, and
claimant appeals contending that his award should not have been
apportioned.

      The parties do not dispute that where, as here, "there is
no continuing need for medical treatment and the medical
condition is essentially stable, [an SLU] award is appropriate"
(Matter of Kondylis v Alatis Interiors Co., Ltd., 116 AD3d 1184,
1186 [2014] [internal quotation marks and citation omitted]).
Further, while apportionment of a workers' compensation award
presents a factual issue for the Board to resolve, its decision
will be upheld only where it is supported by substantial evidence
(see Matter of Morin v Town of Lake Luzerne, 100 AD3d 1197, 1197
[2012], lv denied 21 NY3d 865 [2013]). Importantly, "[h]owever,
apportionment is inapplicable as a matter of law when the
preexisting condition was not due to a compensable injury and the
claimant was fully employed and capable of effectively performing
his or her job duties notwithstanding the preexisting condition"
(id. at 1198 [citations omitted]).

      Here, the evidence established that after claimant's 1981
injury, a "severe sprain" to his right shoulder, he returned to
work as a police officer with no SLU or permanency and thereafter
changed careers for personal reasons; he worked for stove
suppliers for over 20 years with no restrictions on his work
duties and did not again seek medical treatment for his shoulder
until the 2009 work injury. While there was some evidence that
                              -3-                518747

claimant's shoulder was symptomatic over the years, a fact on
which the Board relied, the degenerative condition was not
attributed to either work-related injury and claimant remained
fully employed. Under settled precedent, "the dispositive issue
[for apportionment] is not whether a claimant's preexisting
condition was symptomatic but, rather, whether such condition was
disabling" (Matter of Bruno v Kelly Temp. Serv., 301 AD2d 730,
731 [2003]). That is, apportionment applies to claimant's
degenerative condition only if it "constitutes a disability in a
compensation sense" (id. [internal quotation marks and citations
omitted]; see Matter of Hroncich v Con Edison, 21 NY3d 636, 644 n
8 [2013]), because "degeneration and infirmities . . . which have
not previously produced disability are not a proper basis for
reduction of compensation" (Matter of Hogan v Hilltop Manor of
Niskayuna, 303 AD2d 822, 823 [2003] [internal quotation marks and
citation omitted]).

      In applying apportionment here, the Board incorrectly
relied upon the fact that claimant's degenerative condition was
symptomatic over the years prior to the 2009 injury
notwithstanding the uncontroverted evidence that it was not
disabling in a compensation sense in that he was fully employed
and able to effectively perform his duties despite that condition
(see Matter of Morin v Town of Lake Luzerne, 100 AD3d at 1198;
Matter of Wilcox v Niagara Mohawk Power Corp., 69 AD3d 1264, 1265
[2010]; Matter of Hogan v Hilltop Manor of Niskayuna, 303 AD2d at
823). Accordingly, since there is no evidence of an
apportionable disability before the 2009 injury, apportionment of
claimant's award was inappropriate and not supported by
substantial record evidence, and he is entitled to an award for
the full 60% SLU for that injury.

     Peters, P.J., McCarthy and Rose, JJ., concur.
                              -4-                  518747

      ORDERED that the decision is reversed, with costs, and
matter remitted to the Workers' Compensation Board for further
proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
