State of New YorkSupreme Court, Appellate DivisionThird Judicial DepartmentDecided and Entered: May 17, 2018 524528_________________________________In the Matter of the Claim ofSCOTT BLOOMINGDALE,Appellant,vREALE CONSTRUCTION CO. INC. MEMORANDUM AND ORDERet al.,Respondents.WORKERS’ COMPENSATION BOARD,Respondent.(And Another Related Proceeding.)_________________________________Calendar Date: April 25, 2018Before: Garry, P.J., Lynch, Clark, Aarons and Rumsey, JJ.__________Law Firm of Alex C. Dell, PLLC, Albany (Mindy E. McDermottof counsel), for appellant.Walsh & Hacker, Albany (Sean F. Nicolette of counsel), forReale Construction Co. Inc. and another, respondents.Stephen M. Licht, Special Funds Conservation Committee, NewYork City (Jill B. Singer of counsel), for Special Fund forReopened Cases, respondent.__________Garry, P.J.Appeal from a decision of the Workers’ Compensation Board,filed April 22, 2016, which ruled, among other things, thatclaimant sustained a 33% loss of wage-earning capacity.In 1992, claimant, a heavy equipment operator working forMicheli Corporation sustained a work-related injury to his lowerback and was ultimately classified with a nonschedule permanentpartial disability. By a decision of a Workers’ Compensation LawJudge (hereinafter WCLJ), filed July 8, 2011, the Special Fundfor Reopened Cases assumed liability for the claim pursuant toWorkers’ Compensation Law § 25-a. In September 2011, whileworking for Reale Construction Co. Inc. as an operating engineer,claimant sustained work-related injuries when he fell off anexcavator. His claim for workers’ compensation benefits wasthereafter established for injuries to his neck and back and, in2014, amended to include postconcussion syndrome. Duringsubsequent hearings, Reale Construction and its workers’compensation carrier (hereinafter collectively referred to as theemployer) raised, among other things, the issue of claimant’sattachment to the labor market.1 In a November 2015 notice ofdecision, a WCLJ classified claimant with a nonschedule permanentpartial disability related to the condition of his cervical andlumbar spine (soft tissue) categorized as a class 3 impairmentwith a severity ranking of B and postconcussion syndrome (see NewYork State Guidelines for Determining Permanent Impairment andLoss of Wage Earning Capacity at table 11.1 [2012] [hereinafterthe guidelines]). The WCLJ further determined that claimant hada 33% loss of wage-earning capacity but suspended awards basedupon his finding that claimant was not attached to the labormarket. Upon administrative appeal, the Workers’ CompensationBoard, in relevant part, affirmed.2 Claimant appeals.Initially, in light of the Board’s determination as toclaimant’s degree of disability and loss of wage-earningcapacity, it was, contrary to claimant’s contention, entirelyproper for the Board to consider whether claimant remainedattached to the labor market (see Matter of Wolfe v Ames DeptStore, Inc., 159 AD3d 1291, 1293 [2018]; Matter of McKinney vUnited States Roofing Corp., 150 AD3d 1377, 1378 [2017]).“[W]hether a claimant has demonstrated an attachment to the labormarket is a factual issue for the Board, and its decision in thisregard will be upheld if supported by substantial evidence”(Matter of King v Riccelli Enters., 156 AD3d 1095, 1096 [2017];see Matter of Villalobos v RNC Indus. LLC, 151 AD3d 1156, 1157[2017]; Matter of Pravato v Town of Huntington, 144 AD3d 1354,1356 [2016]). “Significantly, the Board has found that aclaimant remains attached to the labor market when he or she isactively participating in a job location service, a jobretraining program or a Board-approved rehabilitation program, orwhere there is credible documentary evidence that he or she isactively seeking work within his or her medical restrictionsthrough a timely, diligent and persistent independent job search”(Matter of King v Riccelli Enters., 156 AD3d at 1096-1097[internal quotation marks, citations and brackets omitted]; seeMatter of Palmer v Champlain Val. Specialty, 149 AD3d 1342, 1342[2017]; Employer: American Axle, 2010 WL 438153, *4-5, 2010 NYWkr Comp LEXIS 2560, *12 [WCB No. 8030, 3659, Feb. 4, 2010]).Claimant testified that, in November 2015, he attended anorientation session at the Office of Adult Career and ContinuingEducation Services–Vocational Rehabilitation (hereinafter ACCESSVR)to establish an account there and that, on another occasion,he filled out an application for a job program with theDepartment of Labor. He further testified that, although he isretired from his union work and collecting his pension, he calledhis union to inquire about work. Claimant admittedly made noother efforts to find employment or pursue other vocationalservices, and he has not made or scheduled any furtherappointments with ACCESS-VR since the initial orientation. Giventhe minimal nature of claimant’s attempts to find a job withinhis medical restrictions, and the absence of any evidence thathis inability to obtain employment was caused by or related tohis permanent partial disability, the Board’s determination thatclaimant failed to maintain an attachment to the labor market issupported by substantial evidence (see Matter of King v RiccelliEnters., 156 AD3d at 1097-1098; Matter of Palmer v Champlain Val.Specialty, 149 AD3d at 1343-1344; Matter of Walker v DarconConstr. Co., 142 AD3d 740, 741-742 [2016]; Matter of Kucuk vHickey Freeman Co., Inc., 78 AD3d 1259, 1262-1263 [2010]).We agree, however, with claimant’s contention that theBoard’s assessment of a 33% loss of wage-earning capacity is notsupported by substantial evidence. “In situations where, ashere, a claimant sustains a permanent partial disability that isnot amenable to a schedule award, the Board must determine theclaimant’s loss of wage-earning capacity in order to fix theduration of benefits” (Matter of Villalobos v RNC Industries LLC,151 AD3d at 1158; see Workers’ Compensation Law § 15 [3] [w];Matter of Smith v New York City Hous. Auth., 147 AD3d 1184, 1185[2017]). To that end, “chapter 9 of the [guidelines] sets forththe manner for determining the loss of wage-earning capacity fora claimant with a nonschedule permanent partial disability andprovides that it is based on three types of input, namely,medical impairment, functional ability/loss and non-medicalvocational factors” (Matter of Golovashchenko v Asar Intl. Corp.,153 AD3d 1475, 1476 [2017]; see New York State Guidelines forDetermining Permanent Impairment and Loss of Wage EarningCapacity at 44 [2012]). “The first two inputs are medical innature, while the third is non-medical and concerns matters suchas a claimant’s education, skill, age and literacy” (Matter ofGolovashchenko v Asar Intl. Corp., 153 AD3d at 1476; see Matterof Burgos v Citywide Cent. Ins. Program, 148 AD3d 1493, 1495[2017], affd 30 NY3d 990 [2017]; Matter of Pravato v Town ofHuntington, 144 AD3d at 1355). Although “[t]here is no simpleformula to determine loss of wage earning capacity” (New YorkState Guidelines for Determining Permanent Impairment and Loss ofWage Earning Capacity at 47 [2012]; see generally Matter of Tillv Apex Rehabilitation, 144 AD3d 1231, 1232-1234 [2016], lv denied29 NY3d 909 [2017]), the Board states that a “medical impairmentranking is not to be used as a direct translation to loss of wageearning capacity” and, in that regard, “[t]he ultimatedetermination of loss of wage earning capacity is a legal one”(New York State Guidelines for Determining Permanent Impairmentand Loss of Wage Earning Capacity at 44, 51 [2012]).The Board is “vested with the authority to resolveconflicting medical opinions” and, as it did here, credited theMay 2015 report of Marc Bergeron, the physician who conducted anindependent medical examination of claimant (Matter of Maloney vWende Corr. Facility, 157 AD3d 1155, 1156 [2018]; see Matter ofTurner v New York City Dept. of Juvenile Justice, 159 AD3d 1236,1237 [2018]). We find, however, that the information containedin that report relating to claimant’s medical impairments andfunctional ability, together with the record evidence of nonmedicalvocational factors, does not support, as a matter of law,the finding that claimant sustained only a 33% loss of wageearningcapacity. As to claimant’s permanent medicalimpairments, Bergeron categorized claimant under the guidelineswith a class 3 lumbar and cervical spine impairment with aseverity ranking of B. Assessing claimant’s functional abilitiesand losses, which “is a key component in a [WCLJ's] determinationof loss of wage earning capacity” (New York State Guidelines forDetermining Permanent Impairment and Loss of Wage EarningCapacity at 44-45 [2012]), Bergeron opined that “claimant cannotreturn to his prior occupation as a heavy equipment operator” andthat he is only capable of — even when considering each condition“in isolation” and not cumulatively — sedentary work consistingof no at-or-above shoulder activity, no large range of motion ofthe lumbar area and “minimized prolonged continuous activity”(see New York State Guidelines for Determining PermanentImpairment and Loss of Wage Earning Capacity at 48 [2012]).Bergeron further noted that, for both his cervical and lumbararea, claimant has limited exertional abilities for the amount ofweight that he can push, pull, lift or carry and that claimantmust not engage in any “stooping, reaching, crawling . . .work[ing] at heights, no ladders, no squatting, and no kneeling.”Although claimant can operate a small motor vehicle, he may onlydo so for 10 to 15 minutes.With regard to non-medical vocational factors, the Boardrecognized that although claimant finished high school, his ageof 55 and limited vocational experience as a union heavyequipment operator have an aggravating impact on the reduction ofclaimant’s wage-earning capacity. Moreover, while the Boardnoted that claimant has a driver’s license, its utility, asreflected in Bergeron’s report, is limited to 10-15 minutes ofdriving in a small car. Further, the Board’s finding thatclaimant can presently read and write English is “‘based on aninaccurate reading of the record or incomplete facts’” (Matter ofGullo v Wireless Northeast, ___ AD3d ___, ___, 2018 NY Slip Op02388, *1 [2018], quoting Matter of Simpson v New York City Tr.Auth., 136 AD3d 1192, 1193 [2016]). Claimant testified that heis unable to currently read or comprehend language, especiallynumbers, and that because he is unable to personally take care ofhis daily needs, his wife attends to all of his generalactivities of daily living. In our view, given claimant’smedical impairments, extensive functional limitations and lossesand his limited vocational skills, the Board’s finding thatclaimant sustained a 33% loss of wage-earning capacity is notsupported by substantial evidence (see Matter of Golovashchenko vAsar Intl. Corp., 153 AD3d at 1477 [reversing the Board'sassessment of a loss of wage-earning capacity of 60% where therecord did not demonstrate that the claimant could perform lightwork and, to the contrary, indicated that the claimant could onlyperform less than sedentary work or sedentary work]; Matter ofWormley v Rochester City Sch. Dist., 126 AD3d 1257, 1258 [2015][holding that substantial evidence supported the Board's findingof an 80% loss of wage-earning capacity where the claimant's backinjury prevents prolonged sitting, walking, bending or liftingmore than 10 pounds and where the claimant, in her fifties, haslimited reading and math skills and lacks vocational experiencein fields in which she could likely find employment]; see alsoMatter of Wohlfeil v Sharel Ventures, LLC, 155 AD3d 1264, 1265-1266 [2017]; Matter of Cameron v Crooked Lake House, 106 AD3d1416, 1416 [2013]). Accordingly, the matter must be remitted forfurther proceedings to ascertain, based upon the record evidencebefore it, claimant’s loss of wage-earning capacity in accordancewith the guidelines (see Matter of Golovashchenko v Asar Intl.Corp., 153 AD3d at 1477).Lynch, Clark, Aarons and Rumsey, JJ., concur.ORDERED that the decision is modified, without costs, byreversing so much thereof as found that claimant sustained a 33%loss of wage-earning capacity; matter remitted to the Workers’Compensation Board for further proceedings not inconsistent withthis Court’s decision; and, as so modified, affirmed.ENTER:Robert D. MaybergerClerk of the Court
