Opinion
03-16-2017
In the Matter of the Claim of Kevin DRAKE, Appellant, v. SRC, INC., et al., Respondents, et al., Respondent. Workers' Compensation Board, Respondent.
Zimmerman Law Office, Syracuse (Aaron Zimmerman of counsel), for appellant. Wolff, Goodrich & Goldman, Syracuse (Robert E. Geyer Jr. of counsel), for SRC, Inc. and another, respondents.
Zimmerman Law Office, Syracuse (Aaron Zimmerman of counsel), for appellant.
Wolff, Goodrich & Goldman, Syracuse (Robert E. Geyer Jr. of counsel), for SRC, Inc. and another, respondents.
Before: PETERS, P.J., LYNCH, DEVINE, CLARK and AARONS, JJ.
LYNCH, J.Appeal from a decision of the Workers' Compensation Board, filed December 31, 2015, which ruled, among other things, that claimant sustained a permanent partial disability and a 15% loss of wage-earning capacity.
In December 2010, while working as a technical manager, claimant slipped and fell down stairs and injured his neck, back and other parts of his body. Claimant subsequently filed a claim for workers' compensation benefits, and his case was established for the injury to his neck and back. Thereafter, a Workers' Compensation Law Judge found that claimant sustained a permanent partial disability not amenable to a schedule award and, after considering vocational factors such as his age, education and work experience, found that claimant had a loss of wage-earning capacity of 15%—a finding that sets a maximum benefit duration of 225 weeks (see Workers' Compensation Law § 15[3][w][xii] ). Upon review, the Workers' Compensation Board affirmed such findings, and claimant now appeals.
We note that the Board subsequently issued an amended decision but again concluded that claimant sustained a 15% loss of wage-earning capacity. Since the original and amended decisions are not materially different, and there is no claim of prejudice, we will treat this appeal as having been taken from the amended decision (see Matter of Savage v. American Home Care Supply, LLC, 132 A.D.3d 1047, 1047 n., 17 N.Y.S.3d 519 [2015] ; Matter of Madigan v. ARR ELS, 126 A.D.3d 1262, 1263 n., 6 N.Y.S.3d 695 [2015] ).
Claimant contends that since the Board failed to define the specific impact of the factors considered, it should have established a 32% loss of wage-earning capacity based on his actual post-injury wages—a finding that would yield a maximum benefit duration of 275 weeks (see Workers' Compensation Law § 15[3][w][x] ). We disagree. To begin, this argument disregards the statutory distinction between the calculation of loss of wage-earning capacity under Workers' Compensation Law § 15(3)(w) and wage-earning capacity under Workers' Compensation Law § 15(5–a) (see Matter of Rosales v. Eugene J. Felice Landscaping, 144 A.D.3d 1206, 1208–1209, 40 N.Y.S.3d 646 [2016] ; Matter of Canales v. Pinnacle Foods Group LLC, 117 A.D.3d 1271, 1273, 986 N.Y.S.2d 641 [2014] ). Where, as here, a claimant has actual post-injury wages, his or her wage earning capacity "shall be determined by his [or her] actual earnings" (Workers' Compensation Law § 15[5–a] ). By comparison, the durational limits of an award are based on a claimant's loss of wage-earning capacity, measured by a claimant's physical and functional impairments, as well as vocational factors such as age, education, language proficiency and other relevant factors, including a claimant's present employment (see Workers' Compensation Law § 15[3][w] ; Matter of Pravato v. Town of Huntington, 144 A.D.3d 1354, 1355, 41 N.Y.S.3d 594 [2016] ; Matter of Rosales v. Eugene J. Felice Landscaping, 144 A.D.3d at 1207, 40 N.Y.S.3d 646; Matter of Canales v. Pinnacle Foods Group LLC, 117 A.D.3d at 1273, 986 N.Y.S.2d 641 ). That is precisely the standard applied by the Board here.
This calculation is derived from an average weekly wage of $2,551.81, less actual post-injury earnings of $1,730, resulting in a difference of $821.81 or 32% of the average weekly wage. In fact, the Board utilized two thirds of the net difference to calculate claimant's average weekly wage (see Workers' Compensation Law § 15[5–a] ).
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Further, we are unpersuaded by claimant's contention that the Board was required to make specific findings as to the percentage of permanent medical impairment and how the vocational factors affected his ability to secure employment. Claimant has failed to cite any determinative authority for the proposition that the Board must make such specific findings in determining a claimant's loss of wage-earning capacity. Rather, we will not disturb the Board's determination in this respect so long as it is supported by substantial evidence in the record (see Matter of Maddox v. Baumann Sons Buses, 144 A.D.3d 1373, 1374, 41 N.Y.S.3d 605 [2016] ; Matter of Roman v. Manhattan & Bronx Surface Tr. Operating Auth., 139 A.D.3d 1304, 1306, 32 N.Y.S.3d 379 [2016] ; Matter of Baczuk v. Good Samaritan Hosp., 132 A.D.3d 1033, 1035, 18 N.Y.S.3d 189 [2015] ; Matter of Wormley v. Rochester City Sch. Dist., 126 A.D.3d 1257, 1258, 6 N.Y.S.3d 692 [2015] ).
Here, substantial evidence supports the Board's determination that claimant sustained a 15% loss of wage-earning capacity. In making that determination, the Board properly considered claimant's functional abilities and limitations, the severity of his impairment and the fact that he was 50 years old, had a Bachelor's degree in computer science and physics, was pursuing a Master's degree and was proficient in the English language (see Matter of Maddox v. Baumann Sons Buses, 144 A.D.3d at 1374, 41 N.Y.S.3d 605; Matter of Till v. Apex Rehabilitation, 144 A.D.3d 1231, 1234, 40 N.Y.S.3d 661 [2016] ; Matter of Roman v. Manhattan & Bronx
Surface Tr. Operating Auth., 139 A.D.3d at 1306, 32 N.Y.S.3d 379 ). Claimant's remaining contentions have been examined and found to be without merit.
ORDERED that the decision is affirmed, without costs.
PETERS, P.J., DEVINE, CLARK and AARONS, JJ., concur.