Matter of Barrett v. New York City Department of , 46 N.Y.S.3d 444 ( 2017 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: February 9, 2017                   522905
    ________________________________
    In the Matter of the Claim of
    JOHN BARRETT,
    Claimant,
    v
    NEW YORK CITY DEPARTMENT OF                 MEMORANDUM AND ORDER
    TRANSPORTATION,
    Appellant.
    WORKERS' COMPENSATION BOARD,
    Respondent.
    ________________________________
    Calendar Date:   January 13, 2017
    Before:   Peters, P.J., Lynch, Devine, Clark and Aarons, JJ.
    __________
    Zachary W. Carter, Corporation Counsel, New York City (Paul
    M. Zaragoza of counsel), for appellant.
    Eric T. Schneiderman, Attorney General, New York (Donya
    Fernandez of counsel), for Workers' Compensation Board,
    respondent.
    __________
    Devine, J.
    Appeal from a decision of the Workers' Compensation Board,
    filed June 22, 2015, which ruled, among other things, that
    claimant sustained a 25% loss of wage-earning capacity.
    Claimant was injured in a work-related motor vehicle
    accident in 2011 and was awarded workers' compensation benefits.
    In April 2014, claimant returned to work. In a decision filed in
    July 2014, a Workers' Compensation Law Judge (hereinafter WCLJ)
    -2-                522905
    classified claimant as having a permanent partial disability and
    a loss of wage-earning capacity of 25%. The WCLJ found that no
    awards of compensation were due at that time since claimant had
    returned to work at full wages, but that, should that situation
    change, he would be entitled to a maximum of 250 weeks of
    benefits based upon his 25% loss of wage-earning capacity. Upon
    review, the Workers' Compensation Board affirmed the WCLJ's
    determination and the employer appeals.
    We affirm. The employer argues that claimant's
    compensation must be calculated based upon his wage-earning
    capacity pursuant to Workers' Compensation Law § 15 (5-a) and
    that, because he was working at full wages, his wage-earning
    capacity was 100% at the time of classification and that the
    finding of a 25% loss of wage-earning capacity was accordingly
    unlawful.
    The term "loss of wage-earning capacity" was added in 2007
    as part of the reform of the Workers' Compensation Law (see
    Workers' Compensation Law § 15 [3] [w], as added by L 2007, ch 6,
    § 4), and "is used at the time of classification to set the
    maximum number of weeks over which a claimant with a permanent
    partial disability is entitled to receive benefits" (Matter of
    Till v Apex Rehabilitation, 144 AD3d 1231, 1233 [2016]). In
    contrast, wage-earning capacity is used to determine a claimant's
    weekly rate of compensation (see Workers' Compensation Law § 15
    [5-a]). As this Court recently explained in detail, "the
    legislative history makes clear that 'wage-earning capacity' and
    'loss of wage-earning capacity' are to be used for separate and
    distinct purposes" (Matter of Till v Apex Rehabilitation, 144
    AD3d at 1233). Indeed, "[u]nlike wage-earning capacity, which
    can fluctuate based on the claimant's employment status, loss of
    wage-earning capacity was intended to remain fixed" (id. at 1233
    n 2). In light of the separate and distinct purposes for the
    calculation of a loss of wage-earning capacity and the wage-
    earning capacity, 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.
    Peters, P.J., Lynch, Clark and Aarons, JJ., concur.
    -3-                  522905
    ORDERED that the decision is affirmed, without costs.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 522905

Citation Numbers: 147 A.D.3d 1167, 46 N.Y.S.3d 444

Filed Date: 2/9/2017

Precedential Status: Precedential

Modified Date: 1/12/2023