Calendar Date: January 13, 2017
Office of Joseph A. Romano, New York City (Joseph A. Romano
of counsel), for appellants.
Wexler & Wornow, PC, New York City (J. Evan Perigoe of
counsel), for New York City Housing Authority and another,
Before: Peters, P.J., Lynch, Devine, Clark and Aarons, JJ.
MEMORANDUM AND ORDER
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.
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. 
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 
[w]; Matter of Roman v Manhattan & Bronx Surface Tr.
Operating Auth., 139 A.D.3d 1304, 1306 ;
Matter of Wormley v Rochester City Sch. Dist., 126
A.D.3d 1257, 1258 ). "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 ).
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 ), 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 , lv denied 22 N.Y.3d 852');">22 N.Y.3d 852 ).
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 ,
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 ; 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.
Devine, Clark and Aarons, JJ., concur.
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,