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Keywords

workers' compensation
appealworkers' compensationsustained

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Rosales, Matter of

Facts

In June 2010, the claimant was injured while working as a landscaper and has not worked since September 2010. He underwent back surgery in October 2010 and subsequently filed a claim for workers' compensation benefits. The Workers' Compensation Law Judge determined that the claimant suffered a permanent partial disability with a 90% loss of wage-earning capacity, taking into account various vocational factors, including the claimant's age, limited English skills, and work history in manual labor.

In June 2010, claimant was injured while working as a landscaper. Consequently, he has not worked since September 2010 and underwent back surgery in October 2010. Thereafter, claimant filed a claim for workers' compensation benefits. The claim was first heard in March 2011 before a Workers' Compensation Law Judge (hereinafter WCLJ), who determined that the claim was [***2] valid and that claimant's average weekly wage was $500. The WCLJ also determined that claimant suffered a permanent partial class 3, severity B impairment, which indicates a level one medical impairment on a six-point scale, level six being total impairment (see New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity, table 18.1 [2012]). The WCLJ further found that claimant sustained a permanent partial disability of 90% after considering various vocational factors.

Issue

Whether the Workers' Compensation Board was authorized to consider vocational factors in determining the claimant's wage-earning capacity for the purpose of computing the rate of compensation.

At issue is whether the Board was also authorized to consider vocational factors [***4] in determining claimant's wage-earning capacity for purposes of computing the rate of compensation.

Rule

Under Workers' Compensation Law 15 (5-a), for a claimant with no actual earnings, the Board may fix a wage-earning capacity that is reasonable, considering the nature of the injury and physical impairment. The Board is also required to set a durational limit for non-scheduled permanent disabilities.

[*1208] Under Workers' Compensation Law 15 (5-a), for a claimant with no actual earnings, 'the [B]oard may in the interest of justice fix such wage[-]earning capacity as shall be reasonable, but not in excess of seventy-five per centum of [a claimant's] former full time actual earnings, having due regard to the nature of his [or her] injury and his [or her] physical impairment.'

Analysis

The court found that the Board appropriately considered vocational factors when determining the claimant's wage-earning capacity, as the claimant's injury and functional limitations significantly impacted his ability to secure employment. The evidence supported the Board's conclusion that the claimant did not earn actual wages, justifying the decision to fix his wage-earning capacity at 10%. The court noted that the Board's determination was backed by substantial evidence and did not constitute an abuse of discretion.

Consequently, under the circumstances presented, we perceive no error in the Board's determination [***7] to fix claimant's wage-earning capacity based on the undisputed evidence of his physical disability and loss of wage-earning capacity resulting from his functional limitations and vocational impediments (see Matter of Cameron v Crooked Lake House, 106 AD3d at 1416; Matter of Weinhart v Motors Holding, 245 AD2d 577, 579, 664 NYS2d 889 [1997]; New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity 9.3).

Conclusion

The court affirmed the decision and amended decisions of the Workers' Compensation Board, concluding that the Board's determination to fix the claimant's wage-earning capacity at 10% was supported by substantial evidence.

Further, because we find that the Board's determination to fix claimant's wage-earning capacity at 10% was supported by substantial evidence, we decline to disturb it (see Matter of Cameron v Crooked Lake House, 106 AD3d at 1416).

Who won?

The claimant prevailed in the case because the court upheld the Workers' Compensation Board's determination, which was based on substantial evidence regarding the claimant's permanent partial disability and vocational factors.

The employer and its workers' compensation carrier (hereinafter collectively [**648] referred [***3] to as the employer) have appealed all three Board decisions.

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