In the Matter of the Claim of STEVEN G. MANCINI, Respondent-Appellant,
OFFICE OF CHILDREN AND FAMILY SERVICES et al., Appellants- Respondents. WORKERS' COMPENSATION BOARD, Respondent.
Calendar Date: April 28, 2017
William O'Brien, State Insurance Fund, Albany (Edward
Obertubbesing of counsel), for appellants-respondents.
& Gaud, PLLC, Albany (Amina Karic of counsel), for
Before: Garry, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.
MEMORANDUM AND ORDER
appeal from a decision of the Workers' Compensation
Board, filed August 11, 2015, which ruled, among other
things, that claimant was entitled to workers'
compensation benefits pursuant to Workers' Compensation
Law § 15 (3) (v).
a youth division aide at a juvenile facility for incarcerated
youths, established a work-related injury to his left
shoulder and left hip and was awarded workers'
compensation benefits. In 2009, claimant was found to have a
permanent partial disability with a 50% schedule loss of use
of his left arm and was awarded workers' compensation
benefits through June 4, 2011. Following the exhaustion of
those benefits, claimant, who participated in a vocational
rehabilitation program and became employed as a security
officer, sought entitlement to additional compensation for
impairment of wage-earning capacity pursuant to Workers'
Compensation Law § 15 (3) (v). Following a hearing, a
Workers' Compensation Law Judge (hereinafter WCLJ) ruled
that claimant was entitled to additional compensation and
that the award was not subject to the durational limitations
of Workers' Compensation Law § 15 (3) (w). The
Workers' Compensation Board, by decision filed April 18,
2014, modified the WCLJ's decision by finding that the
additional compensation award pursuant to Workers'
Compensation Law § 15 (3) (v) was subject to the
durational limitations set forth in Workers' Compensation
Law § 15 (3) (w). Claimant's subsequent application
for reconsideration and/or full Board review was denied.
a hearing on July 21, 2014 to determine claimant's loss
of wage-earning capacity and the number of weeks that
benefits would be available, the WCLJ ruled that claimant had
a 37.5% loss of wage-earning capacity entitling him to 275
weeks of benefits as of June 4, 2011, which is the date that
the schedule loss of use award ended. By decision filed
August 11, 2015, the Board modified that decision, finding
that the effective date of loss of wage-earning capacity
benefits was the date of the loss of wage-earning capacity
finding, and thus, here, was at the conclusion of the July
21, 2014 hearing. This cross appeal ensued.
contends that the Board erred in finding that additional
compensation benefits awarded pursuant to Workers'
Compensation Law § 15 (3) (v) are subject to the
durational limits set forth in Workers' Compensation Law
§ 15 (3) (w). Workers' Compensation Law § 15
(3) (v) provides that additional compensation shall be
payable for impairment of wage-earning capacity following
termination of a scheduled award for the loss of 50% or more
of a specified body member, provided such impairment of
earning capacity is due solely to the established injury. The
legislative purpose was to provide additional compensation
for the most serious of the schedule awards, specifically the
loss of an arm, hand, leg or foot, so as to be comparable to
the forms of permanent partial disability (see
Governor's Program Bill at 1-2, Bill Jacket L 1970, ch
286). Workers' Compensation Law § 15 (3) (v) thus
specifically provides that determination of such additional
compensation "shall be... in accordance with paragraph
(w) of this subdivision."
Compensation Law § 15 (3) (w) pertains to all other
cases of permanent partial disability not subject to a
schedule award. The Legislature amended that provision as
part of a comprehensive reform in 2007. "The
amendment... capped the number of weeks that a person is
eligible to receive benefits for a non-schedule permanent
partial disability" (Matter of Raynor v Landmark
Chrysler, 18 N.Y.3d 48, 54 , citing L 2007, ch 6,
§ 4). "Prior to the amendment, a permanently
partially disabled worker was able to receive benefits for
life" (Matter of Raynor v Landmark Chrysler, 18
N.Y.3d at 54, citing Workers' Compensation Law former
§ 15  [w]).
this matter presents an issue of pure statutory
interpretation and, as such, requires no deference to the
Board's interpretation of [the two provisions of
Workers' Compensation Law § 15 (3)], we nonetheless
must determine whether the Board's interpretation of that
statute indeed is rational" (Matter of Crisman v
Marsh & McLennan Cos., 6 A.D.3d 899, 900 
[citations omitted]). Contrary to claimant's contention,
Workers' Compensation Law § 15 (3) (v) does not
direct that only the amount of money payable shall be
determined in accord with the provisions of Workers'
Compensation Law § 15 (3) (w); the statutory language
does not prohibit application of that latter provision to the
durational period of benefit payments. Absent a statutory
qualification limiting the applicability of Workers'
Compensation Law § 15 (3) (w) in determining additional
compensation pursuant to Workers' Compensation Law §
15 (3) (v), we find that the Board's decision represents
a rational interpretation and application of the relevant
statute, and we will not disturb it (see Matter of
Catapano v Jow, Inc., 91 A.D.3d 1018, 1018-1019 ,
lv denied 19 N.Y.3d 809');">19 N.Y.3d 809 ; Matter of
Crisman v Marsh & McLennan Cos., 6 A.D.3d at
we are unpersuaded by the contention of the employer and its
workers' compensation carrier that the Board's
determination regarding the effective date of the durational
limits - July 21, 2014 - was arbitrary and capricious and
without a rational basis. As set forth above, Workers'
Compensation Law § 15 (3) (v) authorizes additional
compensation for certain permanent partial disabilities
following the termination of the scheduled award, which is
calculated in accordance with Workers' Compensation Law
§ 15 (3) (w) to determine the amount and duration in
consideration of a claimant's loss of wage-earning
capacity. We find this matter distinguishable from the
administrative decisions relied upon by the employer and its
carrier. Here, claimant was already classified in 2009 with a
permanent partial disability and received schedule loss of
use benefits. Claimant reopened his claim and received
reduced earnings from June 4, 2011 through July 21, 2014.
Given that the additional compensation is sought pursuant to
Workers' Compensation Law § 15 (3) (v), we do not
find the Board's determination as to the effective date
of the durational limits to be irrational and it therefore
will not be disturbed.
Jr., Lynch, Clark and Aarons, JJ., concur.
that the decision is ...