                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 16, 2016                     521993
________________________________

In the Matter of the Claim of
   JUAN PAEZ,
                    Appellant,
      v

LACKMAN CULINARY SERVICES                   MEMORANDUM AND ORDER
   et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   May 25, 2016

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

                             __________


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

      Weiss, Wexler & Wornow, PC, New York City (J. Evan Perigoe
of counsel), for Lackman Culinary Services and another,
respondents.

                             __________


Lynch, J.

      Appeal from a decision of the Workers' Compensation Board,
filed February 6, 2015, which ruled, among other things, that
claimant sustained a permanent partial disability and an 80% loss
of wage-earning capacity.

      Claimant immigrated from the Dominican Republic in 2008 and
began working for the employer as a food service worker. On
October 7, 2010, he injured his lower back when he slipped and
                              -2-                521993

fell while stocking items that he had unloaded from a truck into
a freezer and, consequently, filed a claim for workers'
compensation benefits. His case was established for accident,
notice and causal relationship for the injury to his back and he
received awards at different rates for various periods of time
thereafter.

      In July 2011, an MRI revealed that claimant had a large
herniated disc with nerve root compression and his neurologist
recommended that he undergo a lumbar discectomy and laminectomy.
The orthopedic surgeon who examined claimant on behalf of the
employer's workers' compensation carrier agreed and the surgery
was performed on March 14, 2012. Although the surgery alleviated
many of claimant's symptoms, he continued to have lower back pain
for which he was treated with epidural steroid injections and
medications. He was, however, unable to return to his job as a
food service worker.

      During the course of proceedings in his workers'
compensation case, a Workers' Compensation Law Judge (hereinafter
WCLJ) directed the depositions of three physicians who had
examined claimant to provide testimony on the issues of maximum
medical improvement, permanency and loss of wage-earning
capacity. Claimant's treating pain management physician and the
carrier's orthopedic consultant provided such depositions.1
After considering these depositions and claimant's testimony, the
WCLJ issued a decision finding, among other things, that claimant
had a permanent partial disability and an 80% loss of wage-
earning capacity. A panel of the Workers' Compensation Board
affirmed this decision and claimant now appeals.

      Initially, claimant contends that the Board erred in
failing to consider whether he suffered a total industrial
disability. The Board indicated that it was declining to
consider this issue because it was not raised before the WCLJ.
The record, however, reveals that claimant first raised it in


    1
        The third physician, who was claimant's treating
neurologist, failed to appear for a deposition despite three
attempts to obtain his testimony.
                              -3-                  521993

proceedings before the WCLJ in March 2013 and again in
proceedings in November 2013 at which he testified (compare
Matter of Forte v City & Suburban, 292 AD2d 738, 739 [2002]).
Neither the WCLJ nor the Board, however, addressed this issue,
but instead focused on claimant's loss of wage-earning capacity.
Significantly, the issue of whether a claimant has sustained a
total industrial disability (see Workers' Compensation Law § 35
[2]; Matter of Brady v Northeast Riggers & Erectors, 132 AD3d
1226, 1226-1227 [2015]; Matter of Rose v Roundpoint Constr., 124
AD3d 1033, 1034 [2015]) differs from whether a claimant has
suffered a loss of wage-earning capacity (see Workers'
Compensation Law § 15 [3] [w]; [5-a]; Matter of Baczuk v Good
Samaritan Hosp., 132 AD3d 1033, 1034-1035 [2015]), with the
former having a potentially more favorable outcome for a
claimant. Accordingly, the matter must be remitted to the Board
to consider this issue. In view of our disposition, we need not
address claimant's remaining claim.

     Peters, P.J., McCarthy, Egan Jr. and Devine, JJ., concur.



      ORDERED that the decision is reversed, without 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
