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In re Claim of Smith

Supreme Court of New York, Third Department

February 9, 2017

In the Matter of the Claim of ALFONSO SMITH, Appellant,
v.
NEW YORK CITY HOUSING AUTHORITY et al., Respondents. WORKERS' COMPENSATION BOARD, Respondent. JOSEPH A. ROMANO, Appellant.

          Calendar Date: January 13, 2017

          Law Office of Joseph A. Romano, New York City (Joseph A. Romano of counsel), for appellants.

          Weiss, Wexler & Wornow, PC, New York City (J. Evan Perigoe of counsel), for New York City Housing Authority and another, respondents.

          Before: Peters, P.J., Lynch, Devine, Clark and Aarons, JJ.

          MEMORANDUM AND ORDER

          Peters, P.J.

         Appeal from a decision of the Workers' Compensation Board, filed December 4, 2015, which ruled that claimant sustained a permanent partial disability and a 60% loss of wage-earning capacity and awarded counsel fees.

         In 2007, claimant suffered a work-related injury to his left ankle and he was awarded workers' compensation benefits. The claim was later amended to include a consequential injury to his back. In 2015, a Workers' Compensation Law Judge found that claimant sustained a permanent partial disability and a loss of wage-earning capacity of 90%. The Workers' Compensation Law Judge also awarded counsel fees of $4, 300. Upon review, the Workers' Compensation Board modified by reducing the loss of wage-earning capacity to 60% and the award of counsel fees to $3, 400. This appeal ensued, raising claims on behalf of claimant and, with regard to the reduced counsel fees award, his attorney. [1]

         In order to fix the duration of benefits in cases such as this, where a claimant sustains a permanent partial disability that is not amenable to a schedule award, the Board must determine the claimant's loss of wage-earning capacity (see Workers' Compensation Law § 15 [3] [w]; Matter of Roman v Manhattan & Bronx Surface Tr. Operating Auth., 139 A.D.3d 1304, 1306 [2016]; Matter of Wormley v Rochester City Sch. Dist., 126 A.D.3d 1257, 1258 [2015]). "In so doing, 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 [the] claimant's age" (Matter of Roman v Manhattan & Bronx Surface Tr. Operating Auth., 139 A.D.3d at 1306 [internal quotation marks and citation omitted]; see Matter of Canales v Pinnacle Foods Group LLC, 117 A.D.3d 1271, 1273 [2014]).

         Here, the Board credited the testimony of Alan Zimmerman, an orthopedic surgeon who examined claimant on three occasions on behalf of the employer. Zimmerman testified that claimant suffers from a class 2, severity A impairment of the lumbar spine (see New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity, tables 11.1, 18.1 [2012]), as well as a 50% schedule loss of use of the left ankle. Zimmerman also opined that, although claimant's ability to stand or walk was limited to approximately 20 minutes at a time, he had no restrictions as far as sitting and he could perform both sedentary work and some light duty work within these limitations. The Board properly considered claimant's functional abilities, as well as his age, his eleventh-grade education, previous work experience and his proficiency in the English language. Deferring to the Board's assessment of credibility, substantial evidence supports its determination that claimant has a 60% loss of wage-earning capacity (see Matter of Roman v Manhattan & Bronx Surface Tr. Operating Auth., 139 A.D.3d at 1306; Matter of Wormley v Rochester City Sch. Dist., 126 A.D.3d at 1258-1259; Matter of Cameron v Crooked Lake House, 106 A.D.3d 1416, 1416 [2013], lv denied 22 N.Y.3d 852');">22 N.Y.3d 852 [2013]).

         As to the reduction in the counsel fees, "the Board may approve a fee 'in an amount commensurate with the services rendered and having due regard for the financial status of the claimant and whether the attorney... engaged in dilatory tactics or failed to comply in a timely manner with [B]oard rules. In no case shall the fee be based solely on the amount of the award'" (Matter of Pavone v Ambassador Transp., Inc., 26 A.D.3d 645, 646 [2006], quoting 12 NYCRR 300.17 [f]). A fee approved by the Board will only be disturbed if this Court finds that it is arbitrary, capricious, unreasonable or otherwise constitutes an abuse of the Board's discretion (see Matter of Grasso v Brewster Cent. School Dist., 81 A.D.3d 1060, 1061 [2011]; Matter of Pavone v Ambassador Transp., Inc., 26 A.D.3d at 646-647). Here, the Board summarily reduced the amount of counsel fees from $4, 300 to $3, 400, with no discussion as to services rendered, financial status of claimant or any dilatory actions by counsel. Accordingly, we are unable to discern the rationale for the Board's decision to reduce the fee and, therefore, we must remit the matter for further findings in that regard.

          Lynch, Devine, Clark and Aarons, JJ., concur.

         ORDERED that the decision is modified, without costs, by reversing so much thereof as awarded claimant's counsel $3, 400 in counsel fees; matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.

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