Calendar Date: May 5, 2017
Perecman Firm, PLLC, New York City (Edward Guldi of counsel),
Smit, O'Boyle & Weisman, Hauppauge (Theresa E.
Wolinski of counsel), for RNC Industries LLC and another,
Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Clark,
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
February 8, 2016, which ruled, among other things, that
claimant sustained a 40% loss of wage-earning capacity.
2012, claimant, a laborer, fell from a ladder and sustained a
compensable work-related injury to his head, neck and back.
Claimant returned to work only briefly. Thereafter, a
permanency hearing was held, at which the issue of attachment
to the labor market was raised. In a decision filed February
12, 2015, a Workers' Compensation Law Judge (hereinafter
WCLJ) ruled, among other things, that claimant waived his
right to produce a permanency report and that claimant, in
accordance with the permanency report of the independent
medical examiner (hereinafter IME), suffered a class 2,
severity A impairment of the lumbar spine. The WCLJ also
found that claimant was not attached to the labor market, but
continued the case for further testimony regarding vocational
training and reattachment to the labor market given
claimant's upcoming appointments with Workforce One of
New York. Following a subsequent hearing to determine
claimant's loss of wage-earning capacity, the WCLJ found
that claimant was capable of light-duty work, that he had a
loss of wage-earning capacity of 73.5% and, based on his
testimony regarding a job search, had reattached to the labor
market. The Workers' Compensation Board reversed the
WCLJ's decision inasmuch as it found that claimant was
attached to the labor market and reduced his loss of wage-
earning capacity to 40%. Claimant appeals. 
contends that the Board's finding that he was not
attached to the labor market is not supported by substantial
evidence. We disagree. "A claimant must demonstrate
attachment to the labor market with evidence of a search for
employment consistent with his or her medical
restrictions" (Matter of Hughes v Coghlin Elec.
Contr., 147 A.D.3d 1168, 1168-1169  [internal
quotation marks and citations omitted]). Whether a claimant
is attached to the labor market "is a factual issue for
the Board to resolve and its determination in this regard
will be upheld if supported by substantial evidence"
(Matter of Pravato v Town of Huntington, 144 A.D.3d
1354, 1356 ; see Matter of Cruz v Buffalo Bd. of
Educ., 138 A.D.3d 1316, 1318 ). In rendering such
a determination, "the Board is vested with the
discretion to evaluate witness credibility and to weigh
conflicting evidence" (Matter of Cruz v Buffalo Bd.
of Educ., 138 A.D.3d at 1318 [internal quotation marks
and citation omitted]; see Matter of Tangorre v Tech Home
Elec., LLC, 124 A.D.3d 1183, 1184 ).
the Board found claimant's testimony regarding his search
for employment to be inconsistent, contradictory and not
credible. Specifically, claimant initially testified that he
went to Workforce One but did not return after they told him
that they had not work for him. At the next hearing, claimant
testified that, when he returned to Workforce One, they were
able to assist him in setting up appointments for various
vocational rehabilitation center programs. Claimant did not
keep any of those appointments but, instead, returned to
Puerto Rico. Furthermore, to the extent that claimant
testified that he independently, albeit unsuccessfully,
sought work while in Puerto Rico, he did not present any
documentation reflecting such activities. In view of the
foregoing, and according deference to the Board's
resolution of claimant's credibility, we find that the
Board's determination finding that claimant was not
attached to the labor market is supported by substantial
evidence, and it will not be disturbed (compare Matter of
Winters v Advance Auto Parts, 119 A.D.3d 1041, 1043
also unpersuaded by claimant's contention that the
Board's determination to reduce claimant's loss of
wage-earning capacity is not supported by substantial
evidence and is inconsistent with his work restrictions. In
situations where, as here, 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 in order to fix the duration of
benefits (see Workers' Compensation Law §
15  [w]; Matter of Smith v New York City Hous.
Auth., 147 A.D.3d 1184, 1185 ). "In
determining a claimant's loss of wage-earning capacity,
the Board must consider several factors, including the nature
and degree of the work-related permanent impairment and the
claimant's functional capabilities, as well as vocational
issues - including the claimant's education, training,
skills, age and proficiency in the English language"
(Matter of Burgos v Citywide Cent. Ins. Program, 148
A.D.3d 1493, 1495 ; see Matter of Pravato v Town of
Huntington, 144 A.D.3d at 1355).
we note that any challenge to the classification and severity
rating of medical impairment of the lumbar spine - determined
to be at a level 2A pursuant to the applicable guidelines -
is precluded as claimant failed to appeal from the February
12, 2015 WCLJ decision that determined the severity and
ranking of claimant's permanent partial disability.
Claimant's assertion that he was only able to perform
light-duty work is belied by the record. The IME report
specifically opined that, although claimant was incapable of
continuing his employment as a laborer, claimant was capable
of medium work within certain limitations, including that
claimant could not lift items in excess of 35 pounds. The
Board also properly considered claimant's functional
abilities, as well as his age, work history, educational
status, proficiency in the English language and his ability
to be retrained. Deferring to the Board's credibility
assessments, we find that substantial evidence supports its
determination that claimant sustained a 40% loss of
wage-earning capacity (see Matter of Smith v New York
City Hous. Auth., 147 A.D.3d at 1186).
Jr., Lynch, Devine and Clark, JJ., concur.
that the decision is ...