In the Matter of the Claim of Melody Wohlfeil, Respondent,v.Sharel Ventures, LLC, Respondent, Workers' Compensation Board, Appellant.BriefN.Y.August 29, 2018STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL ERIC T. SCHNEIDERMAN ATTORNEY GENERAL BARBARA D. UNDERWOOD SOLICITOR GENERAL Telephone (518) 776-2028 April 9, 2018 Hon. John P. Asiello Clerk of the Court State of New York, Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Re: Matter of Wohlfeil v. Sharel Ventures, LLC APL-2018-00010 Dear Mr. Asiello: Please accept this letter as the submission of appellant New York State Workers’ Compensation Board (“the Board”) pursuant to Rule 500.11. At issue in this appeal is whether the determination of the Workers’ Compensation Board that claimant Melody Wohlfeil is permanently partially disabled and has suffered a loss of wage earning capacity of 75% is supported by substantial evidence. The Board appeals from a judgment, denominated memorandum and order, of the Appellate Division, Third Department holding that the Board erred in failing to find that claimant sustained a permanent total disability. Two judges dissented from that decision, providing the basis for the Board’s appeal as of right. The Court should retain jurisdiction and reverse the judgment appealed. The judgment of the Appellate Division, reversing the THE CAPITOL, ALBANY, NEW YORK 12224-0341 •PHONE (518) 776-2050 • FAX (518) 915-7724 *NOT FOR SERVICE OF PAPERS http://ag.ny.gov Page 2 determination of the Board and remitting the matter to the Board for “further proceedings” not inconsistent with the court’s decision, is final because the remittal is for ministerial purposes only. And the Appellate Division erred in failing to sustain the Board’s determination. That determination rests on the Board’s assessment of the credibility of the medical witnesses and is supported by substantial medical and vocational evidence in the record. The Appellate Division majority incorrectly ignored the Board’s credibility assessment and credited evidence that the Board had rejected. Because the Board is entitled to weigh the evidence in the first instance and can, as it did here, credit part of a medical expert’s opinion without crediting the opinion in all respects, the Board’s determination was supported by substantial evidence and should have been affirmed. Statutory Framework Compensation benefits available to injured employees under the Workers’ Compensation Law include payment for medical care for their injuries, Workers’ Compensation Law (“WCL”) § 13, and, at issue here, for wages lost due to disability, WCL § 15. With respect to wage compensation benefits, there are four classifications of disability that determine how the award will be calculated and the duration of the award. A compensable work-related disability is either total or partial and either temporary or permanent. See Matter of Landgrebe v. County of Westchester, 57 N.Y.2d 1, 5 (1982). In this case, there is no dispute that claimant is permanently disabled. The core dispute is whether the disability is partial, as the Board found, or total, as the Appellate Division found. An employee who is totally disabled from work is entitled to receive a weekly compensation benefit equal to two-thirds of his or her average weekly wages. If the total disability is permanent, the employee may receive lifetime benefits. See WCL § 15(1). If, however, the disability is permanent but partial, then the calculation of the benefit depends upon the nature of the disability. Page 3 An employee who suffers the permanent loss or loss of use of a bodily member or sense (a finger, a limb, a loss of vision or hearing, for example) is entitled to receive a so-called “schedule loss of use award” or “schedule award,” calculated by multiplying two-thirds of the employee's average weekly wages by the number of weeks specified in the statutory schedule for the particular bodily member or sense disabled or lost. See WCL § 15(3)(a)-(v). In this way, the schedule loss award reflects that there is not a permanent total loss of wage earning capacity. Where an employee suffers a permanent partial disability of a kind not set forth in the schedule, the employee is entitled to receive an award based on the degree of loss of wage earning capacity caused by the partial disability. The Board used this method in determining claimant’s award. The amount of the compensation benefit is calculated as two-thirds of the difference between the injured employee's average weekly wages before the disability and the employee's wage earning capacity thereafter in the same or other employment. WCL § 15(3)(w). Before the 2007 Workers’ Compensation Law reform, employees who were permanently partially disabled due to a non-schedule injury received compensation wage benefits for as long as the impairment continued, which could include lifetime benefits. Matter of Raynor v. Landmark Chrysler, 18 N.Y.3d 48, 54 (2011). The 2007 reform changed the benefits structure for claimants who suffer a non-schedule permanent partial disability. Instead of providing for benefits as long as the impairment continues, the Legislature enacted a framework whereby the duration of benefits— from approximately five to ten years— depends on the loss of wage earning capacity. See WCL § 15(3)(w) (amended by Law 2007, ch.6 § 4). For example, where the Board determines that the loss of wage earning capacity is 15% or less, the employee receives compensation benefits for 225 weeks, or approximately 4 and 1/3 years. WCL § 15(3)(w)(xii). In the present case, the Board found that claimant had a loss of wage earning capacity of 75%, which corresponds to 400 weeks (approximately 7.7 years) of benefits. WCL § 15(3)(w)(vi). Where the loss of wage earning capacity Page 4 is greater than 95%, the claimant receives benefits for 525 weeks, or just over 10 years. WCL § 15(3)(w)(i). Thus, no matter how small the employee’s residual earning capacity— even if the employee can barely engage in employment— the Legislature has decided that benefits will be paid for only a limited duration. This amendment was intended to rein in the high cost of workers’ compensation insurance and substantially reduce the cost of the program to insurance carriers and employers. See Governor’s Program Bill Memorandum, Bill Jacket for L. 2007, ch. 6, at 17. The Legislature recognized, however, that some permanently partially disabled employees would not in fact be able to return to work. Accordingly, the Legislature provided that a partially disabled employee may establish entitlement to continued benefits without regard to the durational caps by demonstrating that he or she is permanently industrially disabled, a concept previously recognized in the case law.1 See WCL § 35(2). The Legislature also provided that where an employee has suffered a loss of wage earning capacity greater than 75%, the employee may, as the durational benefits are coming to an end, seek to be reclassified as permanently totally disabled or totally industrially disabled due to “extreme hardship.” WCL § 35(3). (These provisions are not involved in this case.) In 2012, the Workers’ Compensation Board developed guidelines to address the 2007 reforms, including how to calculate loss of wage earning capacity for permanent partial disability benefits. See Workers’ Compensation Board, New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity (2012) (“2012 Guidelines”),Impairment available at 1 “A claimant who has a permanent partial disability may nonetheless be classified as totally industrially disabled where the limitations imposed by the work-related disability, coupled with other factors, such as limited educational background and work history, render the claimant incapable of gainful employment.” Matter of Barsuk v. Joseph Barsuk, Inc., 24 A.D.3d 1118 (3d Dep’t 2005). Page 5 http://www.wcb.nv.gov/content/main/hcpp/ImpairmentGuidelines/2012I mpairmentGuide.pdf (last accessed March 14, 2018). According to the 2012 Impairment Guidelines, loss of wage earning capacity is based on three types of input: medical impairment, functional ability/loss, and non-medical vocational factors. 2012 Impairment Guidelines, at 44. To evaluate functional capacity the physician is to measure the injured employee’s performance and restrictions across a range of functional abilities, including “dynamic abilities” (lifting, carrying, pushing, pulling, grasping), “general tolerances” (walking, sitting, standing), and “specific tolerances” (climbing, bending, kneeling, reaching). 2012 Impairment Guidelines, at 45. The physician is also to rate the injured employee’s “residual exertional capacity,” according to a scale from sedentary to very heavy. Exertional capacity relates to activities that require lifting, pushing, or pulling objects. 2012 Impairment Guidelines, at 45. These functional capacity criteria are reflected on the Doctor’s Report of MMI (“maximum medical improvement”)/Permanent Impairment (Form C-4.3). Facts and Procedural History A. Background Claimant Melody Wohlfeil suffered a work-related injury to her back on October 16, 2007, while working at a McDonald’s restaurant (R13) and she received Workers’ Compensation Law benefits for many years (R15-37).2 The treatment for her back injury included several surgeries and the implantation and removal of a spinal cord stimulator.3 (R46-47, 57, 89.) Although she continues to suffer pain from 2 Citations refer to pages of the Record on Appeal filed with the Appellate Division. 3 The record is unclear as to how many surgeries claimant had had at the time of the hearing. The Board specifically found she had undergone three back surgeries and the implantation of a spinal cord stimulator. (R4-5.) Claimant testified that she had four surgeries in addition to the stimulator implantation. (R57.) The medical records documenting all of Page 6 the back injury, she has had some success in treating that pain with lumbar epidural steroid injections (“LESI”). (R57). The injections reduce the pain for six to eight weeks at a time. (R57.) In September 2014, the Board requested information regarding the permanency of her injury. (R32.) That request resulted in the Board determination at issue in this proceeding. B. Proceedings Before the Workers’ Compensation Law Judge A hearing was held before a Workers’ Compensation Law Judge on November 10, 2014. The judge considered the Doctor’s Report of MMI (“maximum medical improvement”)/Permanent Impairment (Form C-4.3) completed by claimant’s treating physician, Dr. Ameduri, who is board-certified in physical medicine and rehabilitation. (R48-50, 86-87.) Dr. Ameduri had examined claimant on two occasions (R87-88, 91) and opined that she suffered from unspecified backache, postlaminetomy syndrome in the lumbar region, lumbago (pain in the muscles and joints of the lower back), and sacral disorder. (R48.) In his report, Dr. Ameduri concluded that claimant had reached maximum medical improvement and suffered from a permanent injury, which he opined had a severity ranking of F. (R49). the surgeries are not included in the record on appeal. The record does contain, however, two additional medical reports that discuss additional surgeries subsequent to the hearing. These reports were written after the Workers’ Compensation Law Judge issued his decision (see R109- 132) or after the Board issued its determination (see R40-42). Because there is no evidence that the claimant requested that the Board consider these reports as new evidence unavailable at the time of the hearing, cf. 12 N.Y.C.R.R. § 300.13(g) (repealed Oct. 3, 2016), or that the Board in fact considered these reports, they are not properly part of the record on appeal. Page 7 With respect to her functional and exertional abilities, Dr. Ameduri’s report stated that claimant could lift/carry and pull/push 10 pounds occasionally. (R50.) According to Dr. Ameduri, claimant could also sit, stand, walk, and drive occasionally, and also occasionally engage in simply grasping, fine manipulation, reaching overhead and at or below the shoulder level. (R50.) Based on her exertional limitations, Dr. Ameduri opined that claimant could not engage in sedentary work, which requires the ability to sit “most of the time,” and thus concluded that claimant could engage in less than sedentary work. (R50.) In his deposition, Dr. Ameduri explained that he had seen claimant for post-operative back pain. (R87.) His examination indicated that claimant had continued neurologic findings with sensory deficits, motor deficits, and bladder problems. (R88.) He was uncertain, however, as to the source of the bladder issues. (R91-92.) Based on claimant’s current evaluation he had rated her with significant restrictions on Form C-4.3. (R88.) He confirmed, however, that based on his physical examination of claimant he found she could lift and carry ten pounds occasionally, perform simple grasping and manipulation, and, although she could not sit or stand for long periods of time, she could sit and stand for a maximum of thirty minutes at a time. (R94-95.) He stated that although he did not perform a functional capacity evaluation (“FCE”) (R94), he did not believe claimant could “carry out the capability of a full sedentary job” (R95), and when asked whether she might be able to do so on a part-time basis he simply reiterated that he did not believe she is capable of performing sedentary work (R97). When asked how he would have rated claimant using the Board’s former rating system, which used the categories of total disability and partial mild, moderate, marked disability, Dr. Ameduri stated that he did not actually evaluate claimant in that manner. (R89.) If he were to do so, he opined that he would consider her totally disabled and not able to perform any type of gainful employment. (R89.) He based this conclusion on the fact that claimant had not had a positive outcome to her numerous surgeries or the spinal cord stimulator, and did not appear to have a significant response to the pain medications. (R89.) He Page 8 noted, however, that claimant does not require assistance for personal care activities and that she exhibits no gait deviation. (R99, 100.) The judge also considered the report of the employer’s independent medical evaluator, Dr. Corkill, who also examined claimant on two occasions. (R75-79, 103.) His report indicated that claimant had a “moderate to marked, partial disability” and rated her injury as having a severity rating of G (R75, 76), but concluded that she is unable to return to “regular” work at this time (R76). Claimant had reported to him that she could sit for 30 minutes and stand for 20 minutes and could engage in grocery shopping with a cart. (R76.) His summary of claimant’s medical history noted that she had recently begun treatment with lumbar epidural steroid injections, which claimant apparently reported were not helping. (R76-78.) In his deposition testimony, Dr. Corkill stated that he did not believe claimant could return to work because of her subjective reports of pain, which he believed would prevent her from concentrating on her work. (R104-105.) Although he based his opinion on claimant’s reported pain levels, he noted that her complaints were consistent with the objective physical and diagnostic findings. (R106-107.) Claimant testified at the hearing regarding her vocational experience. She had graduated high school with a regents diploma in 1984. (R52, 62.) After high school, she worked at Woolworths for a few months and then as a veterinary assistant and head receptionist at a veterinary hospital from 1984 to 1990. (R62.) Her duties included training new staff and pharmacy technician responsibilities. (R64, 66.) Claimant then worked as a dental assistant and front office assistant at a dental office from 1990 to 1995. (R67, 68.) She then had a child and worked only intermittently on a part-time basis thereafter. (R69.) Claimant worked part-time as a banquet assistant from 1996 to 1998 and then stayed home to raise her son from 1998 to 2005. (R68, 70.) She then worked at an interior landscaping job on a part-time basis, taking care of plants at offices. (R55, 70.) After that, claimant was employed at Dunkin Donuts and then at McDonald’s; both of those positions were also part time. (R53-54.) Page 9 While working at McDonald’s in 2007, claimant fell on her right hip and injured her spine. (R56.) She has not looked for work since then. (R71.) She explained that she experiences mid to low back pain, which radiates to her right leg and causes numbness and tingling. (R56.) She sometimes trips over her right leg, especially on stairs, and uses a cane for walking (R56-57, 58.) She has been getting periodic lumbar epidural steroid injections, which provide relief for six to eight weeks or longer. (R57.) She maintained, however, that she could not enjoy many of the activities she used to. (R57.) She is able to do light cleaning and cooking, and is able to do the grocery shopping. (R58-59.) Claimant uses a tablet to conduct internet searches and is capable of using email. (R70-71.) She can drive a car for short periods of time (R71), but finds it difficult to sit for long periods (57). When asked whether she thought she might be able to do a job that involved answering phones from home, claimant stated she did not know. (R72.) At the close of the evidence, the Workers’ Compensation Law Judge found that claimant suffered a permanent partial disability with a severity rating of G. (R12.) He found her loss of wage earning capacity was 75% in light of her age, versatility, and experience and the impact her continuing pain condition would have on her ability to perform sedentary or light work. (Rll-12.) The 75% loss of wage earning capacity finding corresponds to 400 weeks of wage benefits. WCL § 15(3)(w)(vi). Claimant then sought Board review of the decision, arguing that both physicians found claimant to be totally disabled and that the decision should therefore be modified to find a permanent total disability. (R80.) The employer argued that the judge’s decision was correct in all respects. (R83.) Page 10 C. The Board Determination Based on the doctors’ reports and their deposition testimony, as well as claimant’s testimony, the Board confirmed the Workers’ Compensation Law Judge’s findings in relevant respects. (R4-9.) The Board credited Dr. Ameduri’s conclusion that claimant suffered a surgically-treated lumbar injury with an F severity ranking, which it found was consistent with the medical and physical findings in the record. (R7, 8.) Further, based on Dr. Ameduri’s report, the Board found that claimant’s functional limitations support a finding that claimant has a capacity for gainful employment. (R7.) Here the Board noted that Dr. Ameduri found that claimant could occasionally sit, stand, walk, and lift objects weighing up to ten pounds and was capable of less than sedentary work. (R5, 7-8.) The Board did not credit Dr. Corkhill’s conclusion that claimant has a permanent total disability because his opinion was based primarily on claimant’s subjective complaints of pain. (R7.) The Board also noted that the doctors’ severity ratings equated to an impairment of 33.33% and 50.00%. (R6.) The Board thus concluded that the medical evidence did not support a finding of permanent total disability and found that claimant was properly classified as having a permanent partial disability. As to claimant’s loss of wage earning capacity, the Board considered the objectively-confirmed severity rating of F, claimant’s residual functional capacity identified by Dr. Ameduri, her “eclectic” work history, and her age (48). (R8.) The Board also recognized that claimant’s employability was somewhat limited by her lack of a higher education. (R8.) Although the Board found claimant could not return to her former employment, it relied on the limitations prescribed by Dr. Ameduri and her admitted ability to perform various activities of daily living to conclude that claimant “has some limited work capacity.” (R8.) The Board accordingly affirmed the law judge’s assessment that claimant suffered a 75% loss in wage earning capacity, which entitled her to wage loss benefits for up to 400 weeks. (R8.) Page 11 Claimant appealed the Board’s determination to the Appellate Division, Third Department. See WCL § 23. D. The Appellate Division Decision A divided Appellate Division reversed the Board’s determination. Matter of Wohlfeil u. Sharel Ventures, LLC, 155 A.D.3d 1264 (3d Dep’t 2017). The three-Justice majority held that the Board’s finding that claimant was able to perform some type of sedentary work was contrary to the “consistent medical proof’ and, thus, that the Board’s conclusion that claimant had a permanent partial disability and a 75% loss of wage earning capacity was not supported by substantial evidence. Id. at 1265. The majority concluded that there was no discrepancy between Dr. Ameduri’s deposition testimony and his report because he found claimant “totally disabled” and gave her “significant restrictions” on the report. Id. The majority thus credited Dr. Ameduri’s testimony that claimant would be considered “totally disabled” under the old guidelines and Dr. Corkhill’s testimony that it was unlikely that claimant would be able to return to meaningful employment to conclude that “the Board erred in failing to find that claimant sustained a permanent total disability.” Id. at 1266. In particular, the majority rejected the notion that a finding of partial disability could be sustained if the Board found the claimant could engage in “some undefined type of limited sedentary work.” Id. The dissenting Justices disagreed with the majority on two points. First, citing Matter of Burgos v. Citywide Cent. Ins. Program, 148 A.D.3d 1493, 1494-95 (3d Dep’t), affirmed, 30 N.Y.3d 990 (2017), the dissent noted that the court had recently found that the ability to occasionally sit, stand, walk, and lift objects weighing up to ten pounds, which correlates to the ability to engage in less than sedentary work, is consistent with a classification of permanent partial disability. Matter of Wohlfeil, 155 A.D.2d at 1266 (Aarons, J., dissenting). Thus, because the Board had credited such evidence in this case, the dissent found the Board’s finding of permanent partial disability was supported by substantial evidenee. Id. Page 12 Second, the dissent found that the majority had failed to defer to the Board’s credibility determinations. The dissent noted that the majority’s conclusion rested on the deposition testimony of Ameduri and Corkill to the effect that claimant had a permanent total disability. Id. at 1267. But the Board had expressly discredited Dr. Corkill’s testimony because it was based primarily on the claimant’s subjective complaints of pain. Further, the Board’s reliance on Dr. Ameduri’s functional capacity findings on his Form C-4.3 to conclude that claimant retained capacity to perform some work indicated that the Board had declined to credit Dr. Ameduri’s testimony that claimant was totally disabled. Id. Because the Board could accept part of a medical expert’s opinion and its credibility determinations should not be disturbed by the court, the dissent concluded that substantial evidence supported the Board’s finding of permanent partial disability. Id. at 1267-68. The dissent likewise found that the Board’s assessment of a 75% loss in wage earning capacity was supported by the record evidence. Thus, the dissent would have affirmed the determination. Id. at 1268. In light of the two-justice dissent on a question of law, the Board appealed as of right to this Court. C.P.L.R. § 5601(a). I. The Court Should Retain Jurisdiction The Court has jurisdiction over this appeal. The order below is a final order or, alternatively, jurisdiction is appropriate under C.P.L.R. § 5602(a)(2). A. The Order Appealed Is Final An appellate court judgment remitting a matter to an administrative agency is final where the Appellate Division remittal contemplates only further action in accordance with its opinion and nothing remains to be done but give effect to the Appellate Division’s order. See generally Karger, Powers of the New York Court of Appeals § 4.10 at 73-76 (3d ed. Rev. 2005). Under these circumstances, the Page 13 Appellate Division order is final because “nothing more than purely ministerial action is required of [the Board].” Colonial Liq. Distribs., Inc. v. O'Connell, 295 N.Y. 129, 134 (1946). This rule applies even where the Appellate Division remittal does not specify what action should be taken by the agency. See id.; see also Matter of Park East Corp. v. Whalen, 38 N.Y.2d 559, 561 (1976) (holding Appellate Division order vacating revocation of petitioner’s operating certificate and remanding to agency for “further proceedings” was final where that court’s opinion made clear that no administrative sanction should have been imposed). After finding that the Board’s determination of a permanent partial disability was not supported by substantial evidence, the Appellate Division concluded that “the record actually warrants a finding of a permanent total disability” and that the Board thus “erred in failing to find that the claimant sustained a permanent total disability.” Matter of Wohlfeil v. Sharel Ventures, LLC, 155 A.D.3d at 1267-68. Accordingly, in remitting to the Board “for further proceedings not inconsistent with [its] decision,” id. at 1268, the Appellate Division contemplated that the Board would enter a finding of permanent total disability and award compensation on that basis. The remittal thus contemplates only ministerial action by the Board. An employee who is totally disabled from work is entitled to receive a weekly compensation benefit equal to two-thirds of his or her average weekly wages. See WCL § 15(1). The fact that the Board must make a mathematical computation upon remittal does not render the judgment nonfinal. See Lippman v. Biennier Transp. Co., 10 N.Y.2d 757 (1961) (affirming order on the merits where the Appellate Division had directed an award of death benefits to the employee’s widow); see also Karger, § 4.10 at 74-75 & n.7. Thus, on remittal the Board would be required to find the claimant permanently totally disabled and award her a weekly compensation benefit equal to two-thirds of her average weekly wages, which it has already calculated and which is not in dispute. The Appellate Division judgment is thus final. Page 14 B. If the Order is Non-Final, Leave Should Be Granted Pursuant to C.P.L.R. § 5602(a)(2) If the Court nonetheless concludes that the Appellate Division’s judgment is nonfinal, it should grant the Board leave to appeal under C.P.L.R. § 5602(a)(2). That section authorizes this Court or the Appellate Division to grant leave to appeal from certain nonfinal orders of the Appellate Division, namely, those entered “in a proceeding instituted by or against one or more public officers or a board, commission or other body of public officers.” This Court has explained that the purpose of this provision is to permit appeal in the circumstance “when, following remittal by [the Appellate Division] to the public officer or body, the officer or body will be called on to act in an adjudicatory capacity and will thus be unable, for lack of aggrievement by its own action, to take an appeal from its determination on remittal for the purpose of obtaining a review of the prior nonfinal order of the Appellate Division.” Power Authority of New York v. Williams, 60 N.Y.2d 315, 323 (1983); see Matter of F.J. Zeronda, Inc. v. Town Bd. of Town of Halfmoon, 37 N.Y.2d 198, 200 (1975). The Board’s determination upon remittal, though made only as a result of, and constrained by, the Appellate Division’s direction, “would nevertheless be considered the agency’s own determination and the agency would not be held to be a ‘party aggrieved’ for purposes of appeal.” Karger, § 10:4, at 335. Leave to appeal should be granted because the Appellate Division’s judgment is in tension with this Court’s recent decision in Matter of Burgos v. Citywide Cent. Ins. Program, 30 N.Y.3d 990 (2017), which upheld the Board’s determination that a claimant with the ability to perform less than sedentary work was permanently partially disabled. See 22 N.Y.C.R.R. § 500.22(b)(4) (Rules of the Court of Appeals). Leave is also warranted because the Appellate Division improperly substituted its evaluation of the credibility of the expert witnesses for the Board’s. See Matter of Bolt v. New York City Dep’t of Educ., 30 N.Y.3d 1065, 1073(2018) (“the Appellate Division exceeded the bounds of its review power, ignored the arbitrators’ credibility Page 15 findings and substituted its judgment for that of the [agency]”) (Rivera, J., concurring). Thus, on either of these grounds, the Court should retain jurisdiction of this appeal. II. SUBSTANTIAL EVIDENCE SUPPORTS THE BOARD’S DETERMINATION THAT CLAIMANT IS PERMANENTLY PARTIALLY DISABLED AND SUFFERED A 75% LOSS OF WAGE EARNING CAPACITY Applying the appropriate deference to the Board’s determination, this Court should reverse the Appellate Division’s judgment and reinstate the Board’s determination. As the Appellate Division dissent would have found, the Board’s determination that claimant suffered a permanent partial disability is supported by substantial evidence, namely Dr. Ameduri’s functional capacity evaluation, the objectively supported severity ratings, and claimant’s ability to perform activities of daily living. As this Court’s affirmance in Matter of Burgos v. Citywide Cent Ins. Program, 30 N.Y.3d 990 (2017), affg 148 A.D.3d 1493 (3d Dep’t 2017), makes clear, the Board can rely on a functional capacity evaluation that correlates to the ability to perform less than sedentary work to find the claimant permanently partially disabled. The Appellate Division dissent correctly concluded that the majority should have deferred to the Board’s credibility determinations and affirmed the Board’s finding that claimant is permanently partially disabled. For like reason, the Board’s assessment that claimant suffered a 75% loss of wage earning capacity is also supported by the record. For all of these reasons, the Appellate Division’s judgment should be reversed and the Board’s determination reinstated. “A finding of fact made by the Workers' Compensation Board is considered conclusive on the courts if supported by substantial evidence.” Matter of Gates v. McBride Transp., Inc., 60 N.Y.2d 670, 671 (1983); accord Matter of Zamora v. New York Neurologic Assoc., Page 16 19 N.Y.3d 186, 192-93 (2012); Matter of Brisson v. County of Onondaga, 6 N.Y.3d 273, 279 (2006). The courts “may not weigh the evidence or reject the Board's choice simply because a contrary determination would have been reasonable.” Matter of Zamora, 19 N.Y.3d at 193. This is because the Board exercises an “exclusive fact-finding function.” Matter of Fine v. S.M.C. Microsystems Corp., 75 N.Y.2d 912, 914 (1990); accord Matter of Johannesen v. N.Y. City Dept, of Hous. Preserv. & Dev., 84 N.Y.2d 129, 134 (1994). Moreover, a “determination as to the weight given an expert opinion is a matter within the exercise of the fact-finding power of the board and, therefore, entirely within its province.” Matter of De Maio v. Rockford Plumbing & Heating, 63 A.D.2d 1041, 1041 (3d Dep’t 1978), aff’d on opn. below, 48 N.Y.2d 665 (1979). Indeed, the courts accord “‘great deference to the Board's resolution of issues concerning conflicting medical evidence and witness credibility, and the Board may accept or reject portions of a medical expert’s opinion.”’ Matter of Roman v. Manhattan & Bronx Surface Transp. Operating Auth., 139 A.D.3d 1304, 1305 (3d Dep’t 2016) (quoting Matter of Campbell v. Interstate Materials Corp., 135 A.D.3d 1276, 1277 (3d Dep’t 2016)); accord Matter of Malerba v. Ameron Global, Inc., 117 A.D.3d 1302, 1302 (3d Dep’t 2014); Matter of Williams v. Colgate Univ., 54 A.D.3d 1121, 1123 (3d Dep’t 2008). Where some evidence supports the Board’s determination, it is within the Board’s “fact-finding province” to reject the contrary testimony of a witness. Matter of Rosen v. First Manhattan Bank, 84 N.Y.2d 856, 858 (1994). And it is well-settled that where there is conflicting medical evidence, the Board can credit one opinion over the other. See, e.g., Matter of Tobin v. Steisel, 64 N.Y.2d 254, 258-259 (1985) (accidental disability retirement benefits); Matter of Girard v. St. Joseph Min. Corp., 69 A.D.2d 968, 969 (3d Dep’t 1979) (“The selection by the board of one of two conflicting medical opinions was within its fact-finding power and, accordingly, the decision of the board, being supported by substantial evidence in the record, must be affirmed.”), affd on opn. below, 50 N.Y.2d 934 (1980). Page 17 Here, the Board’s finding of a permanent partial disability was supported by substantial evidence. Dr. Ameduri’s report indicated that claimant could sit, stand, and walk occasionally, and lift/carry and push/pull up to ten pounds occasionally. (R50.) There was also substantial evidence, including claimant’s own statements, that she could sit for thirty minutes at a time and stand between twenty and thirty minutes at a time. (R76, 94-95.) And the Board credited the record evidence that petitioner could engage in activities of daily living, including driving for short distances, light housekeeping and cooking, grocery shopping, and self-care activities. (R58-59, 71; see R7.) The Board’s finding of a partial disability is further supported by evidence that claimant’s injury has a severity ranking of F, which the Board credited. A ranking of F is not the most severe ranking for a post¬ operative lumbar injury. See 2012 Impairment Guidelines, at 54 (Table 11.2) (providing for severity rankings of D-J for Class 4 surgically- treated lumbar spine injuries). Rather, it corresponds to an impairment level of two out of six, with zero being no impairment and six being totally disabled. 2012 Impairment Guidelines, at 120 (Table 18.1 “Medical Impairment Severity Crosswalk”). Even Dr. Corkill’s finding of a severity rating of G, which corresponds to an impairment level of three out of six, is consistent with a finding of permanent partial disability. See id. Thus, the Appellate Division majority was simply wrong to conclude that the Board’s finding of a permanent partial disability was “contrary to the consistent medical proof presented.” Wohlfeil, 155 A.D.3d at 1265. There was, indeed, ample evidence to support that finding. First, as noted, there was medical evidence supporting the Board’s finding of partial disability. See Matter of Scott v. Manhattan & Bronx Surface Tr. Operating Auth., 132 A.D.3d 1048, 1050 (3d Dep’t 2015) (holding that Board did not improperly reject a unanimous opinion of the medical experts where there was evidence supporting the Board’s finding of a lack of causation). Matter of Golovashchenko v. Asar Inti. Corp., 153 A.D.3d 1475 (3d Dep’t 2017), cited by the Appellate Division majority, is distinguishable on this basis. In Golovashchenko, Page 18 the Board’s finding was suspect because none of the physicians who rated claimant’s exertional abilities prescribed limitations that were consistent with the ability to perform light work. The court thus concluded that the Workers’ Compensation Law Judge must have undertaken his own independent analysis of claimant’s medical condition in concluding that claimant could engage in light work. Here, in contrast, the Board relied on the exertional ratings offered by Dr. Ameduri, and the severity ratings, as well as evidence of claimant’s real world residual abilities to find that claimant was only partially disabled and could engage in some meaningful employment. Moreover, the finding here was not a purely medical question. Rather, disability is a “legal determination that reflects the impact of a workplace injury on the claimant’s ability to work.” 2012 Impairment Guidelines at 8; see Rubeis v. Aqua Club Inc., 3 N.Y.3d 408, 417 (2004). Thus, the cases holding that the Board “cannot entirely reject the unanimous opinion of the experts on the issue of causation and draw its own conclusion as to causation” have no application here. See Matter of Lincoln, 46 A.D.3d at 1177; Matter of Doersam v. Oswego County Dept. of Social Servs., 171 A.D.2d 934, 936 (3d Dep’t 1991), aff’d on opn. below, 80 N.Y.2d 775 (1992); Matter of Van Patten v. Quandt's Wholesale Distribs., 198 A.D.2d 539, 539 (3d Dep’t 1993). Unlike disability, the issue of causation is a purely medical issue. See Matter of Lincoln v. Consolidated Edison Co. of N.Y., Inc., 46 A.D.3d 1176, 1177 (3d Dep’t 2007) (causation is a medical question); accord Matter of Lovegrove v. Regional Food Bank of North Eastern N.Y., 148 A.D.3d 1434, 1435 (3d Dep’t 2017). And the Board was entitled to decline to credit the opinion of Dr. Corkhill that it was unlikely that claimant would ever return to gainful employment where that opinion was based primarily on claimant’s subjective statements regarding her pain. Here, the medical and other evidence indicated claimant retained residual capacity to perform some forms of gainful employment. Moreover, although Dr. Corkhill’s report noted that claimant felt that the lumbar epidural steroid injections did not help, this is contradicted by claimant’s testimony at the hearing. Page 19 (Compare R77 with R57.) The Board properly exercised its discretion not to credit Dr. Corkill’s testimony under these circumstances. The Board was also entitled to credit Dr. Ameduri’s functional capacity assessment while declining to credit his testimony that he would consider claimant totally disabled under the former guidelines. First, although the impairment guidelines no longer use the categories of partial mild, moderate, and marked disability, the law has consistently used the classifications of totally and partially disabled in determining wage loss benefits. See WCL § 15. Thus, it is unclear what Dr. Ameduri meant when he stated that he would have found claimant totally disabled under the former guidelines and that such terminology was no longer used. In any event, the Board could decide to credit only a portion of the doctor’s opinion where evidence supported the Board’s ultimate finding. See, e.g., Matter of Roman, 139 A.D.3d at 1305; Matter ofMalerba, 117 A.D.3d at 1302; Matter of Williams, 54 A.D.3d at 1123. Nor is the fact that Dr. Ameduri classified claimant as able to engage in less than sedentary work inconsistent with the Board’s finding of a permanent partial disability. This was the very question at issue in Matter of Burgos, 148 A.D.3d at 1495, in which the Appellate Division held that “an exertional ability of performing less than sedentary work ... is not dispositive in the context of establishing the claimant’s overall disability.” In affirming and holding that the Board’s determination was supported by substantial evidence, this Court confirmed that a functional capacity finding of less than sedentary work is not inconsistent with a permanent partial disability. See Matter of Burgos v. Citywide Cent. Ins. Program, 30 N.Y.3d 990, 990-91 (2017). Indeed, a claimant could engage in meaningful employment even if she did not meet the standards for sedentary work if, for example, she engaged in sedentary work for less than eight hours per day or if she engaged in sedentary work with modifications, such as the ability to change position frequently. For a permanently partially disabled claimant, the degree to which the impairment affects the claimant’s ability to engage in employment is reflected in the loss of wage earning Page 20 capacity. Indeed, it was in this case. The Board found claimant had suffered a loss of wage earning capacity of 75%, thus recognizing the limited amount she might be employed. Accordingly, the Board’s finding that claimant is permanently partially disabled is supported by substantial evidence. Likewise, the Board’s assessment that claimant has experienced a 75% loss of wage earning capacity is also supported by the record. When a claimant is found to have a permanent partial disability that is not amenable to a schedule loss award, the Board must determine loss of wage earning capacity to determine the duration of benefits. WCL § 15(3)(w). “The Board relies upon various factors in making that determination, including the nature and degree of the work-related permanent physical and/or mental impairment, work restrictions, and claimant's age,” as well as other vocational factors. Matter of Wormley v. Rochester City Sch. Dist., 126 A.D.3d 1257, 1258 (3d Dep’t 2015) (internal quotation and citation and alteration from original omitted). Here substantial evidence supports the Board’s finding that petitioner suffered a 75% loss of wage earning capacity. The Board properly considered claimant’s work history, residual functional capacity, lack of higher education, and her age. The Board’s assessment of a 75% loss of wage earning capacity is supported by such factors. See, e.g., Matter of Martone v. Niagara Frontier Transp. Auth.-Metro, 146 A.D.3d 1191, 1192 (3d Dep’t 2017) (upholding 75% loss of wage earning capacity where Board considered claimant’s work restrictions, his ability to ambulate with a walker and perform some daily living activities despite aggravating factors such as claimant's age, level of education and work experience); Matter of Wormley, 126 A.D.3d at 1258-59 (upholding 80% loss of wage earning capacity where claimant could not engage in prolonged sitting or walking, took medications that caused memory loss, dizziness and blurred vision, did not have a high school diploma, and lacked experience in fields where she was likely to find employment). Page 21 For all of these reasons, the Appellate Division dissent correctly found that the Board’s determination that claimant is permanently partially disabled and suffered a loss of wage earning capacity of 75% is supported by substantial evidence. Accordingly, the Appellate Division judgment reversing the Board’s determination was mistaken and should be reversed. Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York BARBARA D. UNDERWOOD Solicitor General ANDREW D. BING Deputy7Solicitor General LAURA ETLINGERrX Assistant Solicitor/General cc: Melissa Habberfield, Esq. Habberfield Hassler, LLP 13 East Mohawk Street, Suite 200 Buffalo, New York 14203 Melvin Bressler, Esq. 58 Tobey Court Pittsford, New York 14534 AFFIRMATION OF COMPLIANCE Pursuant to the Rules of Practice of the New York Court of Appeals (22 N.Y.C.R.R.) § 500.11(m), Laura Etlinger, an attorney in the Office of the Attorney General of the State of New York, hereby affirms that according to the word count feature of the word processing program used to prepare this brief, the brief contains 6,519 words, stated in § 500.11(m). which complies with the limitations pURAETLINGER AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ) ss: COUNTY OF ALBANY ) LJ i j S. being duly sworn, deposes and says: I am over eighteen years of age and an employee in the office of ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, attorney for Respondent(s) herein. On the day of April, 2018, 1served the annexed Letter Brief, Appellate Division Records and Appellate Division Briefs upon the attorneys named below by depositing a true copy thereof, properly enclosed in a sealed, postpaid wrapper, in a letter box of the Capitol Station Post Office in the City of Albany, New York, a depository under the exclusive care and custody of the United States Post Office Department, directed to the said attorneys at the address within the State and Respectively designated by him for that purpose as follows: Melissa Habberfield, Esq. Habberfield Hassler, LLP 13 East Mohawk Street, Suite 200 Buffalo, New York 14203 Melvin Bressler, Esq. 58 Tobey Court Pittsford, New York 14534 Sworn to before me this day of April, 2018. 'MV, KENNETH KRUEGERNOTARY PUBLIC ary Public, State of New York Reg. No. 01KR6271 239 Qualified in Albany County Commission Expires October 29, 20 Not