                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered:   November 3, 2016                520972
                                                       521386
                                                       521973
________________________________

In the Matter of the Claim of
   MICHAEL SARBO,
                    Respondent,
      v

TRI-VALLEY PLUMBING & HEATING               MEMORANDUM AND ORDER
   et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   September 14, 2016

Before:   McCarthy, J.P., Lynch, Rose, Devine and Mulvey, JJ.

                             __________


      William O'Brien, State Insurance Fund, Albany (Edward
Obertubbesing of counsel), for appellants.

      Buckley, Mendleson, Criscione & Quinn, PC, Albany (Brendan
G. Quinn of counsel), for Michael Sarbo, respondent.

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

                             __________
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                                                 521386
                                                 521973

Lynch, J.

      Appeals (1) from a decision of the Workers' Compensation
Board, filed August 8, 2014, which ruled, among other things,
that claimant sustained a permanent partial disability and a 60%
loss of wage-earning capacity, and (2) from two amended decisions
of said Board, filed July 10, 2015 and October 29, 2015, which,
upon reconsideration, among other things, clarified the Board's
prior decision.

      In August 2010, claimant, a sheet metal installer,
sustained a compensable work-related injury to his back. After a
hearing in February 2011, a Workers' Compensation Law Judge
(hereinafter WCLJ) found that claimant's average weekly wage
before the injury was $1,302.86. Claimant did not return to
work. Following a hearing in October 2013, a WCLJ adopted an
independent medical examiner's determination that claimant had a
permanent partial class 3, severity B impairment (see New York
State Guidelines for Determining Permanent Impairment and Loss of
Wage Earning Capacity, table 18.1 [2012]). Based on that
impairment, the WCLJ found that claimant had a wage-earning
capacity of 50% (see Workers' Compensation Law § 15 [5-a]) and,
after considering that claimant was 43 years old, had an eleventh
grade education and had only worked as a manual laborer,
determined that claimant had a loss of wage-earning capacity of
55% (see Workers' Compensation Law § 15 [3] [w]). Claimant was
awarded continuing payments at a rate of $434.29 per week for a
period not to exceed 350 weeks (see Workers' Compensation Law
§ 15 [3] [w] [viii]).

      In a sequence of three decisions, culminating in its
October 2015 amended decision, the Workers' Compensation Board
modified the award by increasing claimant's loss of wage-earning
capacity to 60%, while reducing his wage-earning capacity to 40%.
In so doing, the Board concluded that vocational factors could be
considered in fixing claimant's wage-earning capacity under
Workers' Compensation Law § 15 (5-a). As a result, claimant's
weekly rate was raised to $521.14. The employer and its workers'
compensation carrier have appealed all three Board decisions.
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                                                     521386
                                                     521973

      The sole issue on this appeal is whether the Board was
authorized to consider vocational factors in fixing claimant's
wage-earning capacity for purposes of computing the rate of
compensation.1 For the reasons set forth in Matter of Rosales v
Eugene J. Felice Landscaping (___ AD3d ___ [decided herewith]),
we conclude that the Board was so authorized and that there was
substantial evidence to support the Board's determination that
claimant had a wage-earning capacity of 40%.

        McCarthy, J.P., Rose, Devine and Mulvey, JJ., concur.



      ORDERED that the decision and amended decisions are
affirmed, without costs.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court




    1
        In his brief, claimant advises that he returned to work
on or about March 31, 2014 and that the award from that point
forward has been calculated based on his actual earnings (see
Workers' Compensation Law § 15 [5-a]). As such, the issue here
narrows to the proper rate of compensation for the period from
October 1, 2013 to October 31, 2014.
