THE CAPITOL, ALBANY, NEW YORK 12224-0341 • PHONE (518) 776-2050 • FAX (518) 915-7724 *NOT FOR SERVICE OF PAPERS
http://ag.ny.gov
STATE OF NEW YORK
OFFICE OF THE ATTORNEY GENERAL
ERIC T. SCHNEIDERMAN
ATTORNEY GENERAL
BARBARA D. UNDERWOOD
SOLICITOR GENERAL
Telephone (518) 776-2028
September 11, 2017
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 Burgos v. Citywide Central Insurance
APL-2017-00074
Dear Mr. Asiello:
Please accept this letter as the submission of respondent New
York State Workers’ Compensation Board pursuant to Rule 500.11.
At issue in this appeal is whether the determination of the
Workers’ Compensation Board that claimant Lidia Burgos is
permanently partially disabled and has suffered a loss of wage earning
capacity of 85% is supported by substantial evidence. Claimant appeals
from a judgment, denominated memorandum and order, of the
Appellate Division, Third Department that affirmed the Board’s
determination. Two judges dissented from that decision, providing the
basis for claimant’s appeal as of right.
The Appellate Division judgment should be affirmed because the
Board’s determination is consistent with the governing statutory
scheme and supported by the medical and vocational evidence. Contrary
to claimant’s argument, the findings that claimant’s lumbar injury has
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the highest severity rating and that her exertional ability corresponds
to less than sedentary work does not compel a finding of permanent
total disability. The severity rating is consistent with a finding of
permanent partial disability and exertional ability is only examined for
claimants who are permanently partially disabled and is used to
determine the duration of benefits for such claimants. For all of these
reasons, the Appellate Division’s judgment was correct.
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,
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).
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 the total disability is
temporary, the employee receives benefits only as long as the disability
continues. WCL § 15(1), (2).
An employee who is temporarily partially disabled from work is
entitled to receive, for as long as the disability continues, two-thirds of
the difference between the employee's average weekly wages before the
disability and the employee's wage earning capacity thereafter in the
same or other employment. WCL § 15(5). The compensation awarded
to an employee who suffers a permanent partial disability is also
related to the effect the work-related injury has on reduction in wage
earning capacity. However, the calculation of the benefit for a
permanent partial disability depends upon the nature of the disability.
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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, as here, 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 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). Prior to 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 amendments dramatically 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 scheme 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 less than 15%, the employee receives
compensation benefits for 225 weeks, or approximately 4 and 1/3 years.
Where the loss of wage earning capacity is greater than 95%, the
claimant receives benefits for 525 weeks, or just over 10 years. WCL
§ 15(3)(w). 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
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duration. This amendment was intended to rein in the high cost of
workers’ compensation insurance and provide substantial savings 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 New
York State Guidelines for Determining Permanent Impairment and
Loss of Wage Earning Capacity (2012) (“2012 Impairment Guidelines”),
available at
http://www.wcb.ny.gov/content/main/hcpp/ImpairmentGuidelines/2012I
mpairmentGuide.pdf (last accessed August 14, 2017). 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.
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).
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The 2012 Impairment Guidelines explain that functional
evaluation is a key component in determining loss of wage earning
capacity. 2012 Impairment Guidelines, at 44. 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.
Facts and Procedural History
1. Background Facts
Claimant Lidia Burgos suffered a work-related injury to her back
on June 12, 2007, while working as a home health aide. (R13, 67.)2 She
received Workers’ Compensation Law benefits for numerous years (R24,
27, 29, 32, 35, 37, 42, 44, 46, 49, 52, 55) and underwent surgery on her
back in December 2009 and January 2011 (R68). After her second
surgery, claimant used a walker intermittently, but has progressed to
using a cane. (R126.) Physical therapy after the second surgery also
improved her mobility. (R127-128.) According to a CAT scan performed
two years after that surgery, the surgery was a success. (R127.)
In 2013, claimant’s work-related injury was revised to include
consequential bi-lateral hip injury. (R55.) In 2014, the Board requested
information regarding the permanency of her injury. (R59.) That
request resulted in the Board determination at issue in this proceeding.
2 Citations refer to pages of the Record on Review filed with the
Appellate Division.
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2. The Workers’ Compensation Law Judge’s Determination
A hearing was held before a Workers’ Compensation Law Judge
on September 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. Henoch. (R62-
65.) On that form, Dr. Henoch, who is board-certified in family
medicine, noted that claimant complained of difficulty after prolonged
standing, and that she used a cane because of a limp. (R65, 116, 117.)
His examination noted spasm of the lumbrosacral musculature with
atrophy of the lower right leg and loss of motor strength with spinal
nerve root impairment. (R65.) He also noted significant disc
abnormalities at two disc levels. Dr. Henoch opined that claimant
experienced a severity rating of J and exhibited a permanent total
disability. (R65.)
With respect to her functional and exertional abilities, Dr. Henoch
indicated claimant could never engage in any of the listed functions,
including sitting, standing, walking, lifting/carrying, climbing, kneeling,
and bending. (R64.) Indeed, although the description of her injury did
not involve her upper extremities, Dr. Henoch also indicated that
claimant could never engage in simple grasping, fine manipulation,
reaching overhead and reaching at or below shoulder level. (R64.)
Moreover, based on her exertional limitations, Dr. Henoch opined that
claimant could not engage in sedentary work, which requires exerting
up to ten pounds of force occasionally and, thus, concluded that
claimant’s exertional ability was less than sedentary work. (R64.)
In his deposition, Dr. Henoch explained that he had examined
claimant in May 2014 and noted complaints of pain and difficulty
walking and standing, with weakness going down the legs. (R117.) He
confirmed the diagnosis in his report, but noted that claimant’s last
CAT scan indicated that the spinal fusion surgery had gone well. (R119,
127.) He explained that claimant experienced a marked atrophy of her
right lower leg and that he encouraged use of the cane because of
weakness in the right leg. (R120-121.) With respect to claimant’s
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functional abilities, Dr. Henoch clarified that he would not recommend
walking more than half a block or sitting for more than 20 to 30
minutes. (R122.) He opined that claimant was not capable of any work
because she could not perform at the sedentary work level and also
experienced sexual dysfunction and difficulty with personal hygiene.
(R123.) However, he also noted that claimant’s mobility had improved
after the surgery with physical therapy and, although claimant reported
difficulty with household activities, including feeding, he had not
observed any difficulty with feeding. (R128, 129.) He also acknowledged
that claimant was unaccompanied in the exam room and explained that
he did not know whether she was accompanied to his office. (R124-125.)
The judge also considered the report of the employer’s
independent medical evaluator, Dr. Sotudeh, who was a board certified
orthopedic surgeon. His report noted that claimant did not appear to be
in acute distress. (R69.) His orthopedic examination indicated no
muscle spasm in the lumbar spine but loss of range of motion in that
area. (R69.) Dr. Sotudeh also noted a decrease in leg strength. (R70.)
However, claimant’s range of motion and flexibility in her hips was
normal. (R70.) He opined that claimant exhibited a marked partial
disability. (R70.) After reviewing sixteen documents, including
numerous x-ray, MRI, and CAT scan reports, Dr. Sotudeh issued an
addendum to his report indicating that claimant exhibited a class four
severity ranking of level F on table 11.2 for “surgically treated spine
condition” in the 2012 Impairment Guidelines. (R78.)
As for her functional and exertional abilities, Dr. Sotudeh’s report
stated that claimant could sit for up to two hours in an eight-hour
workday and could stand and walk for one hour each in that time
period, and in combination could sit, stand, or walk for up to four hours.
(R80.) The report also indicated that claimant could lift and carry up to
ten pounds continuously, could lift and carry up to twenty pounds
frequently, and up to fifty pounds occasionally. (R80.) In addition, she
could bend, squat, crawl, climb, and run, and operate a motor vehicle
occasionally, and could reach above shoulder level continuously. (R80.)
Dr. Sotudeh’s report also indicated that claimant could engage in
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repetitive actions of simple grasping and fine manipulation and could
use her feet and legs for repetitive movement such as operating a motor
vehicle or foot controls. (R80.)
In his deposition testimony, Dr. Sotudeh confirmed that claimant
exhibited a marked partial disability with some nerve root problem and
a decrease in range of motion in her legs, but had good reflexes. (R94,
98, 99, 100-101.) He also confirmed that she could sit for approximately
two hours and stand and walk for approximately one hour each. (R104.)
Claimant testified at the hearing regarding her vocational
limitations. She testified that she was born in the Dominican Republic
and had attained an eighth grade education there. In the ten years
before her accident, she had worked as a home health aide and as a
factory worker assembling brassieres. (R146-147.) As a home health
aide, she had bathed the patient, cooked, cleaned, and had run errands.
(R147.) She could speak and read a little English, but could not write in
English. (R147.)
At the close of the hearing, the Workers’ Compensation Law Judge
found that claimant suffered a permanent partial disability with a
severity rating of J, and gave her an impairment rating of 75%. (R152.)
He found her loss of wage earning capacity was 85% in light of her age
(56), education, and limited work history. (R153.) In a written decision,
the judge found that claimant could engage in less than sedentary work
and confirmed his oral findings. (R159.)
Claimant then sought Board review of the decision, arguing that
she should be found permanently totally disabled due to the fact that
both doctors opined she could engage in less than sedentary work.
(R167.) Alternatively, the claimant argued that the Board should find
claimant has a 100% loss of wage earning capacity. (R168.) The
employer argued that the judge’s decision was correct in all respects.
(R169.)
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3. 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.3 The Board
credited Dr. Henoch’s testimony that claimant’s condition is a
surgically-treated lumbar injury with a J severity ranking. (R9-10.)
Further, based on the testimony of both doctors, the Board found that
claimant could engage in less than sedentary work. (R9-10.) However,
the Board did not credit Dr. Henoch’s testimony that claimant was
totally disabled, finding instead, like the Workers’ Compensation Law
Judge, that she was permanently partially disabled with a loss of wage
earning capacity of 85%. (R10.) The Board noted that if claimant had
been found to be totally disabled, there would have been no need to
consider her functional ability because she would not be expected to
return to the workforce. (R9, 10.)
Claimant appealed the Board’s determination to the Appellate
Division, Third Department. See WCL § 23.
4. The Appellate Division Decision
In a three-two decision, the Appellate Division affirmed the
Board’s determination. Noting that the Board was authorized to resolve
conflicting medical testimony, the Appellate Division upheld the Board’s
finding that claimant was partially disabled as supported by
substantial evidence. Matter of Burgos v. Citywide Cent. Ins. Program,
148 A.D.3d 1493, 1494 (3d Dep’t 2017). The court noted that this finding
was supported by the report and testimony of Dr. Sotudeh to the effect
that claimant could sit, stand and walk combined for up to four hours a
day, could lift objects weighing up to 20 pounds, and could occasionally
bend, squat, run, climb and operate a motor vehicle. Id.
3 The Board noted that the judge had found the claimant suffered a
thoracic injury (see R158) and in its decision corrected this to a finding
of a lumbar injury. (R10.)
Page 10
The Appellate Division rejected claimant’s argument that the
finding that she had an exertional ability of “less than sedentary work”
compelled a finding that she was totally disabled. Here the court noted
that the exertional ability finding—ability to do very heavy work, heavy
work, medium work, light work, sedentary work and less than
sedentary work—is part of the determination of the claimant’s
functional ability and relates to a determination of loss of wage earning
capacity and, thus, duration of benefits for a permanent partial
disability. Id. at 1494-95. Accordingly, the court noted that exertional
ability is only determined for claimants who have been found to be
partially disabled; exertional ability is not relevant for claimants found
to be totally disabled because there is no expectation that they will
rejoin the work force. Id. at 1495.
Finally, deferring to the Board’s credibility determinations and its
assessment of the evidence, the Appellate Division held that the Board’s
finding that claimant suffered a loss of wage earning capacity of 85%
was supported by substantial evidence. Id. at 1496. The court held that
the Board considered the appropriate factors and that its determination
was supported by the medical testimony and claimant’s testimony
regarding her vocational factors. The court specifically noted that while
the Board credited both doctors’ reports that claimant could engage in
less than sedentary work and Dr. Henoch’s report that claimant
suffered a lumbar injury with a severity rating of J, it must also have
credited Dr. Sotudeh’s testimony that claimant could sit, walk and
stand for up to four hours per day. Id. at 1496.
The dissenters would have found that the Board erred in failing to
find that claimant was totally disabled. They reasoned that an
assessment of degree of impairment requires consideration of the
claimant’s functional abilities. Id. at 1496-97. They thus concluded that
the highest severity rating coupled with the finding that claimant could
engage in less than sedentary work warranted a Board finding of total
disability. Id. at 1497.
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In light of the two-justice dissent on a question of law, claimant
appealed as of right to this Court. C.P.L.R. § 5601(a).
SUBSTANTIAL EVIDENCE SUPPORTS THE BOARD’S
DETERMINATION THAT CLAIMANT IS PERMANENTLY
PARTIALLY DISABLED AND SUFFERED AN 85% LOSS OF
WAGE EARNING CAPACITY
Applying the appropriate deference to the Board’s determination,
this Court should affirm. The Appellate Division correctly held that the
Board’s determination that claimant is permanently partially disabled
and suffered an 85% loss of wage earning capacity is supported by
substantial evidence and, thus, should not be disturbed. Further, there
is no merit to claimant’s argument that her severity rating and
exertional ability are consistent with a finding only of total disability or
that the evidence otherwise compels a finding that she has suffered a
100% loss in wage earning capacity. If claimant cannot find appropriate
employment because of the degree of her partial impairment or due to
her vocational factors, she may seek to demonstrate that she is totally
industrially disabled or, when her durational benefits are coming to an
end, she may seek reclassification as permanently totally disabled or
totally industrially disabled because of extreme hardship.
The Board’s factual determinations will be upheld as long as there
is substantial evidence supporting them. Matter of Zamora v. New York
Neurologic Assoc., 19 N.Y.3d 186, 192-93 (2012); Matter of Brisson v.
County of Onondaga, 6 N.Y.3d 273, 279 (2006); Matter of Capizzi v.
Southern Dist. Reporters, Inc., 61 N.Y.2d 50, 54 (1984). 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). 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
Page 12
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 (3d Dep’t 2014); Matter of Williams v.
Colgate Univ., 54 A.D.3d 1121, 1123 (3d Dep’t 2008). Thus, 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).
Here, the evidence fully supports the Board’s finding that
claimant is permanently partially disabled. Dr. Sotudeh’s report
indicated that claimant was not in acute distress and, although she
exhibited a loss of range of motion in her lumbar spine and some nerve
damage and loss of leg strength, he found no muscle spasm in the
lumbar spine and good range of motion and flexibility in her hips (R69,
70, 100-101.) Based on his orthopedic examination, Dr. Sotudeh found
that claimant suffered a marked partial disability. (R70.) He also found
she could sit, walk, and stand for up to four hours in an eight-hour day
and could engage in occasional bending and squatting, which lends
further support to his conclusion that the disability was only partial.
The fact that the Board credited Dr. Henoch’s report that claimant
suffered a lumbar injury with a severity rating of J is not contrary to
the finding that she is only partially disabled. Although level J is the
highest level of severity for a post-surgical lumbar injury, see 2012
Impairment Guidelines, at 54 (Table 11.2), it corresponds to an
impairment level of four 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”). Although a claimant
who suffered no other injury other than a lumbar post-surgical injury
with a severity rating of J could theoretically be found to be totally
Page 13
disabled—if other factors warranted that medical determination4—a
finding of severity level J is not inconsistent with a determination that
the claimant is only partially disabled.
Moreover, the Board could reasonably credit Dr. Henoch’s report
and testimony that claimant suffered an injury with a J severity rating,
while crediting Dr. Sotudeh’s report and testimony that claimant is only
partially disabled and has residual functional capacity. Indeed, “in
resolving conflicting medical proof the Board may selectively adopt or
reject portions of a medical expert’s testimony.” Matter of Grucza v.
Waste Stream Tech., 252 A.D.2d 901, 903 (3d Dep’t 1998); accord Matter
of Bunnell v. Sangerfield Inn, 35 A.D.3d 1021, 1022 (3d Dep’t 2006);
Matter of Williams v. Blovsky Motor Sales, Inc., 150 A.D.2d 887, 887 (3d
Dep’t 1989); see also Matter of Wood v. Leaseway Transp. Corp., 195
A.D.2d 622 (3d Dep’t 1993) ( The Board is “free to reject all or part of
the medical evidence offered.”). Thus, the Board could accept part of Dr.
Henoch’s testimony but reject his conclusion that claimant was totally
disabled.
Furthermore, the Board could reasonably decline to adopt Dr.
Henoch’s conclusion that claimant had no residual functional capacity
in any category. Despite the fact that none of the medical reports
indicated an injury to claimant’s upper extremities, Dr. Henoch
indicated that claimant could never engage in simple grasping, fine
manipulation, reaching overhead, and reaching at or below shoulder
level. (R64.)
Importantly, the determination whether a claimant is totally or
partially disabled appropriately rests on the medical evidence. Thus,
4 The 2012 Impairment Guidelines contemplate that the physician may
indicate other limitations caused by the impairment that impact the
claimant’s ability to function in the work place. These would include, for
example, prescription medications that impact the claimant’s ability to
do work. 2012 Impairment Guidelines, at 46. Here, claimant’s physician
indicated no additional limitations. (R64.)
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where there is a difference in medical opinion on this issue, the Board
may credit the medical testimony that claimant is only partially
disabled and can engage in certain activities. When it does so, its
determination is supported by substantial evidence and will not be
disturbed. See Matter of Curcio v. Sherwood 370 Mgt. LLC, 147 A.D.3d
1186, 1187-88 (3d Dep’t 2017).
Claimant is simply incorrect in arguing (July 12, 2017 letter, at 5-
6) that the finding that she could engage in less than sedentary work
necessarily leads to the conclusion that she is totally disabled. As the
Board correctly reasoned, it is not inconsistent to find that the claimant
does not meet the requirements for sedentary work—the ability to exert
up to ten pounds of force occasionally or a negligible amount of force
frequently and to sit for most of the day, 2012 Impairment Guidelines,
at 45—but is not totally disabled. First, as the Court below found, the
analysis of the claimant’s functional and exertional ability is only
relevant to determining a permanently partially disabled claimant’s
loss of wage earning capacity. See 2012 Impairment Guidelines, at 44.
Determining the degree of residual functional capacity is not necessary
for a permanently totally disabled claimant because the claimant is not
expected to rejoin the work force and benefits continue for the
remainder of the claimant’s life. See Matter of Williams v. Preferred
Meal Sys., Inc., 126 A.D.3d 1259, 1259 (3d Dep’t 2015). Thus, the
exertional limitations are used to determine the loss of wage earning
capacity of a partially disabled claimant; they are not used to determine
whether a claimant is totally or partially disabled.
In any event, for a permanently partially disabled claimant, the
degree to which the impairment affects the claimant’s ability to engage
in employment will be reflected in the loss of wage earning capacity.
Indeed, it was in this case. The Board found claimant had suffered a
loss of wage earning capacity of 85%, thus recognizing the limited
amount she might be employed.
Moreover, the fact that the Board found claimant could engage in
less than sedentary work does not mandate a finding that claimant
Page 15
could not engage in work at all. A claimant could work 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. And to the extent claimant believes that despite a
partial disability she is unable to engage in any employment, she may
seek to establish that she is totally industrially disabled or, when the
end of her benefits period approaches, she may seek to be reclassified as
totally disabled on the basis of extreme hardship. WCL § 35(3).
Nor is there merit to claimant’s argument (July 12, 2017 letter, at
5) that a finding that the claimant can engage in less than sedentary
work equates to total disability based on a comparison to the 1996
Medical Guidelines. Claimant argues that the impairment
classifications of the 1996 Medical Guidelines (total, marked, moderate,
mild and no disability) were replaced with the exertional categories in
the 2012 Impairment Guidelines (less than sedentary, sedentary, light,
heavy, and very heavy), so that less than sedentary exertional limits
necessarily equate to total disability. But there is no support for this
argument. The impairment categories in the 1996 Medical Guidelines
describe the medical condition of the impairment and do not discuss
functional or exertional ability. See, e.g., Medical Guidelines, at 26-27
(1996), available at
http://www.wcb.ny.gov/content/main/hcpp/mdguide.pdf (last accessed
August 17, 2017). Moreover, the exertional categories are used to
determine loss of wage earning capacity to establish the duration of
benefits, which was not an issue under the former scheme. There is
thus no direct comparison between the 1996 Medical Guidelines
impairment classifications and the 2012 Impairment Guidelines
exertional categories. Rather, the 1996 impairment classifications were
replaced with the severity rankings now computed for the degree of
impairment.
Claimant also argues (July 12, 2017 letter, at 5) that an exertional
ability of less than sedentary work should compel a finding of total
disability because that relationship exists under the Social Security
Page 16
Administration’s guidelines for disability benefits. Claimant is wrong.
Under the Social Security Administration’s guidelines “a finding that an
individual has the ability to do less than a full range of sedentary work
does not necessarily equate with a decision of ‘disabled.’” SSR 96-9p:
Policy Interpretation Ruling Titles II and XVI: Determining Capability
to Do Other Work-Implications of a Residual Functional Capacity for
Less than a Full Range of Sedentary Work (1996). Rather, under the
federal law a finding of disability under these circumstances will
“depend primarily on the nature and extent of [the claimant’s]
functional limitations or restrictions.” Id.
Finally, there is no merit to claimant’s alternative argument set
forth in the court below that the evidence compels a finding that
claimant suffered a 100% loss of wage earning capacity. When a
claimant is found to have suffered 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, the Board found claimant had a marked impairment to her
lumbar spine, that she could sit, stand and walk for a combined four
hours per day, and could engage in occasional bending and squatting.
These factors combined with her limited English proficiency and eighth
grade education and work history support the Board’s determination
that she suffered a loss of wage earning capacity of 85%, which would
allow her to receive benefits for 450 weeks or nearly 9 years. Similar
Board determinations have been upheld by the courts. See, e.g., 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
Page 17
experience in fields she was likely to find employment). Matter of Curcio
v. Sherwood 370 Mgt. LLC, 147 A.D.3d at 1188 (90% loss where
claimant was 52, had limited college education, had primarily engaged
in physical labor, and was capable of less than sedentary work); Matter
of Rosales v. Eugene J. Felice Landscaping, 144 A.D.3d 1206, 1207 (3d
Dep’t 2016) (90% loss where claimant had a permanent impairment at
the one out of six level, was 46 years old, from El Salvador, had a
second grade education, limited English skills, and had worked in
manual labor).
For all of these reasons, the Board’s determination that claimant
is permanently partially disabled and suffered a loss of wage earning
capacity of 85% is supported by substantial evidence. Accordingly, the
Appellate Division judgment affirming that determination should be
affirmed.
Respectfully submitted,
ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
BARBARA D. UNDERWOOD
Solicitor General
ANDREW D. BING
Deputy Solicitor General
LAURA ETLINGER
Assistant Solicitor General
Page 18
cc: Michael D. Uysal, Esq.
Law Office of Michael D. Uysal, PLLC
5030 Broadway
Suite 662
New York, New York 10034
J. Evan Perigoe. Esq.
Weiss, Wexler & Wornow
25 Park Place
Fourth Floor
New York, New York 10007
CERTIFICATION
Pursuant to section 500.11(m) of this Court’s Rules of Practice, I certify
that, according to the word-processing system used to prepare this brief,
the body of the letter-brief (including footnotes) contains 5,079 words.
'CUM;
tura Etlinge: