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GARY M. WEXLER IAN J. HABERSTRO
LOUIS R. SALVO (1982 – 2009)
September 1, 2017
The Court
New York State Court of Appeals
20 Eagle Street
Albany, NY 12207-1095
Re: Lidia Burgos v. Citywide Central Ins Program
Case No: APL-2017-0074
3d Dept Case No: 523075
WCB Case No: 00737421
Madam Chief Judge and Honorable Judges:
Indemnity Insurance Company of North America Inc. (“IINA”) and the
respondent employer, Citywide Central Insurance Program, submit that this Court
should affirm the March 30, 2017, decision of the Appellate Division, Third
Department, which itself affirmed the August 6, 2015, decision of the Workers’
Compensation Board.
2
INTRODUCTION
In this case, the Board decided – and the Appellate Division agreed – that the
appellant Lidia Burgos has a 75% degree of medical impairment and an 85% loss
of wage earning capacity, and further found that she was capable of working at a
working at the less-than-sedentary level. In this Court, Ms. Burgos does not argue
that these findings are not supported by substantial evidence
Rather, Ms. Burgos appears to argue1 that the Board’s findings automatically
entitle her – as a matter of law – to a finding of a permanent total disability.2 (App.
Br. at 9.) There are four basic flaws to this argument.
First, the Board determines whether a permanent disability is “partial” or
“total” without reference to evaluations made under the Guidelines for Determining
Permanent Impairment and Loss of Wage Earning Capacity that were adopted by
the Board in 2012 (the “2012 PI & LWEC Guidelines”). Those guidelines apply
only where the Board has already found that a claimant is partially disabled.
2 The appellant has waived any argument that she has a total industrial disability. Before the
Board’s appellate panel and the Appellate Division, she argued only that she had a “permanent
total disability” and a “100% loss of wage earning capacity.” Under Matter of Tenecela v Vrapo
Constr., 146 AD3d 1217, 1218 (3rd Dept 2017), this is not sufficient to preserve the issue of a
total industrial disability. The appellant has now waived the argument that she has a “100% loss
of wage earning capacity” by omitting this argument from her brief. Moreover, WCL § 15 (3)
(w) does not permit lifetime benefits, leading the Board to conclude that there is “no provision
for a 100.00% loss of wage earning capacity.” (Employer: United Cerebral Palsy, 2016 NY
Wrk. Comp. LEXIS 292, at *12-13, [WCB No. G0332386, Jan. 11, 2016].)
3
Second, even if 2012 PI & LWEC Guidelines applied to determining
whether a disability is “total” or “partial,” allowing an exertional ability category
to dictate the duration or level of a claimant’s benefits is contrary to the text and
intent of those guidelines.
Third, the 2012 PI & LWEC Guidelines themselves reject the use of “Grid
Rules” similar to those used by the Social Security Administration.
Finally, regardless of whether or not the 2012 PI & LWEC Guidelines apply
to distinguishing between a “total” or “partial” disability, the Board acted well
within its discretion to conclude that there is work that available to a person with
the appellant’s restrictions that does not require the ability to do full-time sedentary
work.
STATEMENT OF THE FACTS
As noted above, the appellant’s principal contention in this case is that “a
claimant who is found to have a less-than-sedentary work capacity is permanently
totally disabled.” (App. Br. at 9.) This is a legal issue that does not turn on the
specific facts of the appellant’s case. Insofar as such facts are relevant, IINA refers
4
the Court to pages two through six of the brief that IINA filed in the Appellate
Division.3
ARGUMENT
For the following reasons, this Court should affirm the decisions of the
Board and the Appellate Division.
1. The Board determines the issue of permanent total solely based
on medical impairment, without reference to the 2012 PI &
LWEC Guidelines.
The 2012 PI & LWEC Guidelines do not affect how the Board determines
whether or not a claimant has a permanent total disability. Indeed, they barely
mention, and clearly do not purport to govern, determinations of whether a
permanent disability is total or partial.
The 2012 PI & LWEC Guidelines were initially drafted as the “Disability
Duration Guidelines” by a task force set up within the New York State Insurance
Department as a result of Governor Elliot Spitzer’s direction regarding enactment
of Assembly Bill 6163. (Letter from James J. Wrynn, Superintendent, New York
3 That said, the appellant makes her arguments by relying on Dr. Henoch’s findings based on the
incorrect premise that the Board had found his opinion alone to be credible. (App. Brief at 3.)
As IINA explained on pages seven and eight of the brief filed in the Appellate Division, the
Board took no such action. Therefore, in deciding this appeal, the Court should also consider Dr.
Sotudeh’s opinion that the appellant was capable of lifting up to 10 lbs continuously, up to 20 lbs
frequently and up to 50 lbs occasionally and that she could spend a total of four hourse each day
sitting, standing and walking. (R. at 80.)
5
State Insurance Department, September 15, 2010 at 1; available at
http://www.dfs.ny.gov/insurance/wc/wc-Beloten.pdf). Significantly, the
enactment into law of Bill 6163 – often referred to as the “Workers’ Compensation
Reform Law of 2007” – did not amend WCL § 15 (1), which governs when the
Board can find a claimant has a permanent total disability. (2007 N.Y. A.N. 6163; L
2007, ch 6, §§ 2, 4, 75, 76.) Rather, the only part of § 15 that this new law
amended was subsection (3)(w), which governs “other cases of permanent partial
disability.” (Id.) The amendments expressly limited “all compensation payable
under this paragraph” to a maximum of 525 weeks, with the exact number of
weeks of benefits in each case to depend on the “loss of wage earning capacity”
(“LWEC”) set by the Board. (L 2007, ch 6, § 4; WCL 15 [3] [2].)
When the Board adopted the 2012 PI & LWEC Guidelines, it included a
foreword stating explicitly that the guidelines themselves were developed
following the “2007 Workers’ Compensation Reform” which “established duration
limitations on non-schedule permanent partial disability awards based on an
injured worker’s loss of wage-earning capacity (LWEC).” (p. 7; emphasis added.)
The Board also acknowledged that the 2012 PI & LWEC Guidelines “incorporate”
the Insurance Department’s draft guidelines. (Id.)
Chapter 9 of the 2012 PI & LWEC Guidelines, entitled “Non-Schedule
Awards,” begins as follows:
6
Evaluation of non-schedule permanent partial disability (PPD-NSL)
involves both medical and non-medical issues. For claims with a date
of injury on or after March 13, 2007 (post-reform), the duration of
PPD-NSL benefits is limited based on the claimant’s loss of wage
earning capacity. Loss of wage earning capacity is based on three
types of input:
1. Medical impairment
2. Functional ability/loss
3. Non-medical/vocational factors (e.g. education, skills, age, literacy,
etc.)
Chapter 9 instructs doctors on how to rate a claimant’s exertional ability and
defines the various categories of work. (at 45.) While Chapter 9 discusses “how to
determine loss of wage earning capacity for those with PPD-NSL” and
requirements “[t]o be eligible for a PPD-NSL award,” it does not address
determination of permanent total disability at all. The 2012 PI & LWEC
Guidelines mention the phrase “permanent total disability” only in the introduction
to the entire document, and only to recognize this as a possible alternative to a
“permanent partial disability.” (2012 PI & LWEC Guidelines, p. 8, 10.)
In this case, the Appellate Division explained that a limitation to less-than-
sedentary work under the 2012 PI & LWEC Guidelines did not automatically lead
to a finding of a total disability because the guidelines did not apply to that
analysis. Specifically, the court found that:
Under the Board guidelines, physicians are required to perform an
evaluation of a claimant’s functional capabilities, including his or her
exertional abilities (see New York State Guidelines for Determining
7
Permanent Impairment and Loss of Wage Earning Capacity at 44-46
[2012]). The finding of a claimant’s exertional ability is a factor to be
considered by the Board in determining the claimant's loss of wage-
earning capacity. (see [Id.]) The loss of wage-earning capacity is used
to establish the duration of benefits for claimants that have sustained a
permanent partial disability (see [Id.]; Matter of Pravato v Town of
Huntington, 144 AD3d 1354, 1355, 41 N.Y.S.3d 594 [2016]; Matter of
Williams v Preferred Meal Sys., 126 AD3d 1259, 1259, 3 N.Y.S.3d
658 [2015]). “In contrast, a permanent total disability is established
where the medical proof shows a claimant is totally disabled and
unable to engage in any gainful employment. The duration of benefits
is not an issue in the permanent total disability context for the simple
reason that there is no expectation that a claimant found to have such
a disability will rejoin the work force” (Matter of Williams v Preferred
Meal Sys., 126 AD3d at 1259 [internal quotation marks, brackets and
citations omitted]). Accordingly, a finding that a claimant has an
exertional ability of performing less than sedentary [sic] work, while a
factor to consider in setting the duration of a permanently partially
disabled claimant’s benefits, is not dispositive in the context of
establishing the claimant’s overall disability. Rather, the exertional
ability to work is applicable only to those claimants already found to
have sustained a permanent partial disability and, therefore, are
expected to rejoin the work force.
(Matter of Burgos v Citywide Cent. Ins. Program, 148 AD3d 1493, 1494-95 [3rd
Dept 2017].) In light of the fact that nothing in the 2012 PI & LWEC Guidelines
was meant to affect how the Board determines whether a claimant has a total
disability, the Appellate Division was correct in holding that exertional ability “is
not dispositive in the context of establishing the claimant’s overall disability.” (Id.)
Further, Ms. Burgos articulates no basis outside of the 2012 PI & LWEC
Guidelines that requires reversal of the Board and the Appellate Division. The
only two cases she cites – Williams and Vandermark – both upheld the Board. The
8
appellant cites no cases in which the Board determined that a claimant’s disability
was less than total and in which the Board was reversed by an appellate court
based on the work restrictions provided by the physicians commenting in the case.
(126 AD3d 1259 [3d Dept 2015]; 60 AD3d 1171 [3d Dept. 2009].)
It is not surprising that the appellant cites no case law to support her
position, as WCL § 15 (1) requires a ‘permanent total disability’ finding only in
cases where a claimant has lost any two eyes or extremities. The same section of
the statute states that “[i]n all other cases permanent total disability shall be
determined [by the Board] in accordance with the facts.” Of course, findings of
fact made by the Board are “considered conclusive on the courts if supported by
substantial evidence” (Matter of Gates v McBride Transp., 60 N.Y.2d 670, 671
[1983]), so reviewing courts must uphold the Board’s determination of disability
unless they lack such support. (Ciprian v Barbizon Hotel, 305 AD2d 946, 947 [3rd
Dept 2003].)
This Court has flatly held that a “permanent total disability” means
“unemployability in any capacity.” (Rubeis v Aqua Club Inc., 3 NY3d 408, 417
[2004] [in which the court defined “grave injury” under art. 2 of the WCL].)
Consistent with such a definition, it has long been the case that the Board must
determine whether a claimant has a “permanent total disability” based solely on
whether a claimant’s medical condition would allow that person to do any kind of
9
work. (See Ronda v Edenwald Contr., 216 AD2d 741, 741 [3rd Dept 1995];
Mastan v Nashua Tape Prods., 219 AD2d 766, 767 [3rd Dept 1995].) That is, the
Board does not have to analyze whether a particular claimant is actually capable of
finding and keeping a job based on his “vocational and functional capacity” under
all the circumstances unless it has already decided that a claimant is only partially
disabled. (Matter of Williams v Preferred Meal Sys., 126 AD3d 1259, 1259 [3rd
Dept 2015]; see also Matter of Roman v Manhattan & Bronx Surface Tr. Operating
Auth., 139 AD3d 1304, 1306-07 [3rd Dept 2016].)
2. Even if the 2012 PI & LWEC Guidelines applied to determining
whether disability is total or partial, they do not support allowing
an exertional ability category to dictate the duration or level of a
claimant’s benefits.
There is simply no support whatsoever for the appellant’s argument that the
exertional ability categories “created in the 2012 PI & LWEC Guidelines; heavy
work, medium work, light work sedentary work, and less-than-sedentary work;
replace the disability levels of the 1996 Guidelines; total, marked, moderate, mild
and no disability” and that each of the exertional levels corresponds to one of the
prior disability levels. (App. Br. 4-5.) In fact, these are unrelated concepts and
neither controls the other.
First, the 2012 PI & LWEC Guidelines state that:
Generally, one who can only perform sedentary work has fewer job
options than the same person who can perform light, medium or heavy
10
work. Yet, the impact of one’s exertional loss may vary considerably
depending on the type of work that one previously performed and
other factors such as education and transferable skills.
(at 48.)
Second, the 2012 PI & LWEC Guidelines clearly contemplate that the
workers’ compensation law judge exercises final authority to determine disability
based on several enumerated factors. If exertional ability directly controlled
disability, then the judge would frequently have no authority to determine disability
and could not give any weight to other factors. The first chapter of the 2012 PI &
LWEC Guidelines clearly states that the issue of a claimant’s disability is a “legal
determination” and that it is “[t]he Workers’ Compensation Law Judge [who]
establishes the level of disability based on the available medical evidence and other
relevant information,” choosing from “Temporary total disability,” “Permanent
total disability,” “Temporary partial disability,” and “Permanent partial disability.”
(at 8.) The guidelines also note that there is a distinction “between disability and
impairment. Impairment is a purely medical determination made by a medical
professional, and is defined as any anatomic or functional abnormality or loss.”
(Id.)
Third, the 2012 PI & LWEC Guidelines also make clear that, as a case
progresses from a determination of disability to a determination of a claimant’s
11
loss of wage earning capacity, the judge still decides the ultimate issue.
Specifically, the introduction to non-schedule awards explains:
Loss of wage earning capacity is based on three types of input:
1. Medical impairment
2. Functional ability/loss
3. Non-medical/vocational factors (e.g. education, skills, age, literacy,
etc.)
The first two inputs are medical evidence that is provided by the
treating provider and the carrier consultant, when appropriate. … The
third input is non-medical evidence that is presented by the parties as
part of the evaluation of loss of wage earning capacity.
The ultimate determination of loss of wage earning capacity is a legal
one. … Medical professionals should not express opinions on the
ultimate issue of loss of wage earning capacity, but rather should
provide information on the claimant’s medical impairment, functional
and exertional limitations, and other medical issues relevant to the
judge’s determination of loss of wage earning capacity.
(at 44.) In discussing medical impairment, physicians are directed both to provide
a severity ranking (expressed as a letter) as well as a classification (expressed as a
number) and the “medical basis for the impairment classification, including the
relevant history, physical findings and diagnostic test results.” (Id.)
As this Court is aware, the Board is not permitted to “fashion[ its] own
medical opinion.” (In re Doersam v Oswego County Dept. of Social Servs., 171
AD2d 934, 937 [3rd Dept 1991].) Rather, the Board must use its expertise to select
between the views of two experts who disagree, (id.) or find that the only medical
12
opinion in the record is credible or not credible (Matter of Eber v Jawanio, Inc., 85
AD3d 1520, 1522 [3rd Dept 2011]). If the Board finds that all the opinions are not
credible, then it must find against the party bearing the burden of proof. (Id.)
Given that exertional ability is merely one component of a medical opinion
on “residual functional ability/loss,” a judge or a reviewing panel of the Board can
only reject an exertional ability determination where (1) there is a conflicting
medical opinion or (2) the medical opinion of exertional ability is not credible.
Therefore, if it were true that exertional ability dictates disability, then the Board
would have no discretion in determining disability even in cases where there is no
conflicting or challenged medical opinion. In such circumstances, the judge would
not be able to consider a doctor’s views on classification, severity ranking, history,
physical findings, and diagnostic test results – because the doctor’s exertional
ability determination alone would dictate the result. Taken to its logical
conclusion, this would bar the WCLJ from considering vocational factors that
could decrease loss of wage earning capacity for someone whom doctors find
capable of less-than-sedentary work.
3. The 2012 PI & LWEC Guidelines rejected the Social Security
“Grid Rules” approach, along with any rule mandating a total
disability based on exertional ability alone.
The Board’s issuance of the 2012 PI & LWEC Guidelines did not – as the
claimant contends – cause the Board to adopt a part of the United States Social
13
Security Administration “Grid Rules” under which anyone who is capable of less-
than-sedentary work must be automatically considered totally disabled. The
guidelines make no such statement, and nothing in their drafting history supports
the appellant’s position. In fact, there is evidence such a “grid approach” was
rejected.
First, the exertional ability categories the Board adopted were taken from
“the U.S. Department of Labor’s system for analyzing the functional requirements
of jobs.” (Wrynn Letter at 6.) Contrary to the appellant’s contention, these
categories were not “taken directly from the Federal Social Security Grid Rules.”
(App. Br. at 5.) Significantly, the Social Security Administration is an independent
agency unaffiliated with the Department of Labor. The 2012 PI & LWEC
Guidelines explicitly state that they “adopted the exertional ability categories
directly from the Dictionary of Occupational Titles, or DOT, (4th ed., Rev. 1991),
published by the U.S. Dept. of Labor.” (2012 PI & LWEC Guidelines, 123.) While
the Board itself recognized that these categories had also been “adopted by the
Social Security Administration” (Id.; 20 C.F.R. § 404.1567) the Board’s reliance on
the same source as the SSA does not suggest it sought to adopt any SSA
regulations or practices. The Board’s statement that the exertional ability
definitions were the same as those “used in the Social Security system” (2012 PI &
LWEC Guidelines, 45) seems intended simply to help the many attorneys and
14
doctors who were already familiar with the Dictionary of Occupational Titles from
their work on cases before the SSA to understand the Board’s new guidelines.
Indeed, while the letter accompanying the draft guidelines specifically mentions
that the drafters reviewed medical impairment guidelines from five specific states
and from the American Medical Association, it does not mention any review of the
SSA’s medical guidelines. (Wrynn Letter at 5.)
Second, there is only a single mention of a “grid approach” in the materials
relating to the adoption of the 2012 PI & LWEC Guidelines. (Wrynn Letter at 8.)
This suggests that the Board was not considering a system that would lead to
automatic findings of total disability, and demonstrates that such an approach was
never incorporated into the guidelines that were finally adopted. The drafters of
the 2012 PI & LWEC Guidelines only considered a system that would have
awarded additional “percentage points of loss of wage earning capacity” based on
“the difference in the injured worker’s functional exertional capacity after the
injury compared to the exertional requirements of the at-injury job.” (Wrynn Letter
at 8, emphasis added.) Moreover, the superintendent considered four different
approaches for determining loss of wage earning capacity, but no approach was
included as part of the draft guidelines “because a consensus could not be reached”
among those advising the task force. (Id.)
15
In the end, the Board itself rejected the “grid approach” by adopting
guidelines that reminded judges that “the impact of one’s exertional loss may vary
considerably depending on the type of work that one previously performed and
other factors such as education and transferable skills.” (2012 PI & LWEC
Guidelines at 48.)
Finally, the systems administered by the Board and by the SSA are vastly
different and yield different results. One critical difference is that the SSA
determines who should receive federal government funds and bears all costs of
administering the system and paying claims. The SSA may make regulations, for
reasons of efficiency, that allow it to pay certain claims without fully litigating the
issue of whether certain claimants actually totally disabled. For example, one of
the “Grid Rules” issued by the SSA is that anyone aged 50 or above who is limited
to sedentary work because of certain impairments, and whose skills do not transfer
to a sedentary job, is automatically considered “disabled” from all work and
entitled to full benefits. (20 CFR § 201.14.) The agency might also make such a
rule to mitigate the harshness of its all-or-nothing system in which claimants get
benefits for permanent total disabilities, but not for partial disabilities. (See 42 U.
S. C. §§423 [d] [2] [A], 1382c [a] [3] [B]).
By contrast, the New York State Workers’ Compensation Board is
structurally different from the Social Security Administration and applies very
16
different law. Unlike the SSA, the Board only administers a system of
compensation in which private parties (i.e., insurance carriers and qualified self-
insureds) and the State Insurance Fund pay compensation. Each claim can and
must be determined on its merits. Indeed, under the Workers’ Compensation Law,
it would be improper for the Board to find a claimant was totally disabled without
engaging in an individualized analysis that considers all the evidence. But that is
exactly what the SSA’s “Grid Rules” do.
4. The Board correctly determined that there is work available for
people who have less-than-sedentary functional capacity.
It is not “impossible to imagine a job that a claimant who has a less-than-
sedentary functional capacity can perform.” (App. Brief at 8.) Indeed, even if the
2012 PI & LWEC Guidelines somehow applied to determining whether a
permanent disability is partial or total, the Board’s determination that a person is
capable only of “less-than-sedentary work” is nevertheless insufficient to show that
she or he is totally disabled. Under the 2012 PI & LWEC Guidelines, “sedentary
work” requires:
Exerting up to 10 pounds of force occasionally and/or a negligible
amount of force frequently to lift, carry, push, pull or otherwise move
objects, including the human body. Sedentary work involves sitting
most of the time, but may involve walking or standing for brief
periods of time. Jobs are sedentary if walking and standing are
required only occasionally and all other sedentary criteria are met.
(2012 PI & LWEC Guidelines at 45.)
17
A claimant may be functionally capable of work, despite being placed in the
“less-than-sedentary work” category, if she or he is unable to sit most of the day,
but is still able to do a job that mostly requires standing and/or walking. The
Board’s 2012 PI & LWEC Guidelines require that this claimant be placed in the
“less-than-sedentary category” because all the requirements of sedentary work,
including sitting most of the day, are incorporated by reference into all the higher
levels of exertional ability. That is, the physical requirements of “light work” are
“in excess of those for sedentary work” and each of the other three categories –
medium work, heavy work and very heavy work – is, in turn, described as in
excess of the level below. (2012 PI & LWEC Guidelines at 45-46.)
It is true that the Board must categorize anyone who is unable to sit as
capable of doing ‘less-than-sedentary’ work. However, many of these people are
quite capable of performing work that is done almost entirely while standing or
walking, such as work as a cashier, school crossing guard, or a member of a
restaurant’s wait-staff. (See Employer: Belmay Holding Corporation, 2016 NY
Wrk. Comp. LEXIS 18836, *6 [WCB No. G0174011, November 14, 2016] [in
which the Board found the claimant was partially disabled and capable of less-
than-sedentary work after finding the most credible physician was one who stated
that the claimant was “able to stand for long periods of time alternating with short
periods of sitting”].)
18
Moreover, a claimant may be able to earn wages or self-employment income
despite being placed in the “less-than-sedentary work” category is if she or he is
capable of meeting the demands of sedentary work on a part time or irregular basis.
The 2012 PI & LWEC Guidelines do not state the number of hours of work that a
person must be able to perform at a particular level of exertional ability.
Importantly, the Board has held that claimants who can do sedentary work, but for
less than an eight-hour work day, are capable of less-than-sedentary work and are
partially disabled. (Employer: Vrapo Construction, 2015 NY Wrk. Comp. LEXIS
10460, *5, *13-14 [WCB No. 040 1664, November 12, 2015]; Employer: Rural
Metro Corp., 2015 NY Wrk. Comp. LEXIS 3967, *10 [WCB Doc. 2015 NY Wrk.
Comp. LEXIS 3967, May 14, 2015].)
A claimant may also be functionally capable of work, despite being placed in
the “less-than-sedentary work” category, if that person can perform work that
permits sitting or standing at his or her own leisure. (See Employer: Zoel
Holdings, 2017 NY Wrk. Comp. LEXIS 3997, *1, *8, *15-16, [WCB No.
00828154, Mar. 9, 2017] [in which the Board found a claimant was partially
disabled after it determined he had difficulty sitting and that doctor if found was
the most credible said the claimant could do less-than-sedentary work but that he
could work if he could choose when to sit and stand].) Some office jobs can
accommodate someone limited to “less-than-sedentary” work by providing a
19
“standing desk” that can allow a person to adjust between sitting and standing.
(See Employer: Oneida Health Systems Inc, 2015 NY Wrk. Comp. LEXIS 4969,
*6 [WCB No. G075 0838, Jun. 15, 2015].) Similarly, a person who works from
home is generally also able to change physical position as needed and can avoid
taking too much time off work due to sporadic exacerbations. (See Employer:
NYC Transit Authority, 2016 NY Wrk. Comp. LEXIS 445, *6 [WCB No.
00840673, January 15, 2016].)
In this very case, there was evidence in the record that Ms. Burgos each day
could sit for up to 2 hours, stand for one hour, walk for one hour. (R. 80.) There
was also evidence that she could lift up to 20 pounds frequently. (R. 80.) Thus,
the Board had substantial evidence from which it could and did conclude that the
appellant’s disability was only partial because she could do work at the sedentary
level on a less-than-full-time basis.
Taken to its extreme, the appellant’s logic leads to absurd results. Consider,
for example, claimants who are able to return to their prior employment with no
reduction in wages. Under the appellant’s logic, the Board would be required
either to find that these claimants have no permanent disability at all or that they
have a 0% loss of wage earning capacity. This would be contrary to law. In Matter
of Barrett v NY City Dept. of Transp., 147 AD3d 1167, 1167-68 (3rd Dept 2017),
the claimant was working with no reduction in his earnings. Despite this, the
20
Appellate Division held that “the Board was free to establish the duration of
claimant’s benefits by classifying him with a 25% loss of wage-earning capacity in
order to set a fixed durational limit on potential benefits.” (Id.)
As noted above, it is for the Board to decide whether a claimant has a total
disability “in accordance with the facts” (WCL § 15) based on its own
understanding of the record. (See Rourke v Reichhold Chem., Inc., 129 AD2d 949,
950 [3rd Dept 1987].) That is, the Board may decide this issue even without
evidence from a vocational expert about the specific level of medical and
functional impairments that totally prevent someone from earning wages or self-
employment income. (See Id.) While the Board must consider any proffered
opinions of vocational experts and resolve any disagreements between them, such
experts typically do not express opinions regarding the issue the Board must
determine when deciding between a permanent total disability and a permanent
partial disability: whether there is employment is available for someone with the
medical condition and functional abilities like the claimant’s. (E.g. Matter of
Barsuk v Joseph Barsuk, Inc., 24 AD3d 1118, 119 [3rd Dept 2005]; Utley v GMC,
285 AD2d 843, 844 [3rd Dept 2001].) This is because vocational experts typically
only give opinions as to whether the specific claimant’s permanent partial
disability should be raised to that of a total industrial disability given the claimant’s
own particular vocational background. (E.g. id. See also Matter of Rose v
21
Roundpoint Constr., 124 AD3d 1033, 1034-35 [3rd Dept 2015]; Matter of Ping
Guan v CPC Home Attendant Program, Inc., 50 AD3d 1218, 1220 [3rd Dept
2008].)
Here, no vocational expert testified that someone with a medical condition
like the appellant’s who cannot meet the demands of sedentary work would be
unable to earn any income from employment or self-employment. Thus, the Board
was both empowered and required to determine – irrespective of the appellant’s
particular vocational abilities – whether or not her impairments resulted in a total
disability or in only a partial disability. The Board considered the evidence in the
record and found that she still had some ability to work. Thus, for the reasons
described above, it was within the Board’s discretion to find that the appellant was
only partially disabled because there were jobs available that someone with her
medical impairments could do.
22
CONCLUSION
For the reasons set forth above, the Court should affirm the decision of the
Appellate Division.
Dated: New York, New York
September 1, 2017
Respectfully submitted,
J. Evan Perigoe
WEISS, WEXLER & WORNOW, P.C.
Attorneys for Employer/Carrier-Respondents
25 Park Place, 4th Floor
New York, New York 10007
(212) 227-0347
Statement under Rule 500.11 (m)
I certify that the text of the document above consists of 4,940 words.
J. Evan Perigoe
23
Disclosure Statement Pursuant to Rule 500.1 (f)
Indemnity Insurance Company of North America (“IINA”) is a wholly-owned
subsidiary of INA Holdings Corporation, which is a wholly-owned subsidiary of
INA Financial Corporation, which is a wholly-owned subsidiary of INA
Corporation, which is a wholly-owned subsidiary of Chubb INA Holdings Inc.,
which is 20% owned by Chubb Limited and 80% owned by Chubb Group
Holdings, Inc., which is a wholly-owned subsidiary of Chubb Limited. Chubb
Limited is publicly-traded on the New York Stock Exchange. All the other entities
are privately held.
For filing of an original and two copies with:
CLERK OF THE COURT
Court of Appeals of the State of New York
20 Eagle Street
Albany, New York 12207
I, J. Evan Perigoe, do swear under penalty of perjury (1) that I am an attorney
licensed to practice in New York, and that my place of business is 25 Park Place,
4th floor, New York, NY, 10007 and (2) that on September 1, 2017 I served one
copies of this respondent’s brief and supplementary materials upon each of the
following parties at the addresses listed below by depositing those copies at
depository under the exclusive care of U.S. Postal Service:
LAW OFFICE OF MICHAEL D. UYSAL
Attorney for Claimant-Appellant
5030 Broadway, Suite 662
New York, NY 10034
OFFICE OF THE SECRETARY
NEW YORK STATE WORKERS’
COMPENSATION BOARD
328 State Street
Schenectady, New York 12305-2318
HON. ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for Respondent Workers’
Compensation Board
120 Broadway
New York, New York 10271
Dated: New York, New York
September 1, 2017
_________________________
J. EVAN PERIGOE