Calendar Date: September 14, 2017
Bressler, Pittsford, for appellant.
Habberfield Hassler LLP, Buffalo (Melissa Habberfield of
counsel), for Sharel Ventures, LLC, respondent.
Before: McCarthy, J.P., Lynch, Clark, Aarons and Pritzker,
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
October 29, 2015, which ruled that claimant sustained a
permanent partial disability and a 75% loss of wage-earning
suffered injuries to her back, right hip, ribs and right knee
after she fell at work in October 2007, and she was awarded
workers' compensation benefits. In 2015, a Workers'
Compensation Law Judge found that claimant sustained a
permanent partial disability and a 75% loss of wage-earning
capacity. The Workers' Compensation Board affirmed, and
claimant now appeals.
reverse. After injuring her back in October 2007, claimant
underwent multiple back surgeries, including a L3-4 and L4-5
spinal fusion in December 2010 and fusions at L4-5 and L5-S1
in August 2012. A spinal cord stimulator was implanted in
August 2013. Claimant's physician, Clifford Ameduri, was
treating her for postoperative back pain. Ameduri completed a
"Doctor's Report of MMI/Permanent Impairment"
form C-4.3 in August 2014 that classified her condition as
permanent and assigned a class five severity F rating to her
lumbar back injury under the New York State Guidelines for
Determining Permanent Impairment and Loss of Wage Earning
Capacity (2012). Ameduri also rated her functional capacity
at "less than sedentary work, " a category defined
as "unable to meet the requirement of sedentary
work." Sedentary work refers to work that "involves
sitting most of the time, but may involve walking or standing
for brief periods of time" (New York State Guidelines
for Determining Partial Impairment and Loss of Wage Earning
Capacity at 45 ). Ameduri consistently testified that
claimant's response to the surgical interventions was not
positive, that she continues to have a significant amount of
pain and that she is "not... capable of performing any
type of gainful employment at this time." With respect
to the form C-4.3 determination as to claimant's
"Functional Capabilities/Exertional Abilities, "
Ameduri further explained that "we don't use the
terms totally disabled or 100 percent disabled anymore, so
rather than using those older terms, I gave her rather
significant restrictions" - an explanation confirming
that there is no inconsistency between Ameduri's C-4.3
determination and his testimony. When pressed to define the
extent of claimant's disability under the "old
terminology, " Ameduri responded, "I would call her
totally disabled." Nowhere in this record does Ameduri
opine that claimant sustained only a permanent partial
disability. Guy Corkhill, the physician who conducted an
independent medical examination on behalf of the workers'
compensation carrier, assigned a class four severity G rating
to claimant's back condition. In his testimony, Corkhill
agreed with Ameduri that it was "unlikely [claimant]
would ever be able to return to meaningful employment."
Notwithstanding this medical testimony, both the Workers'
Compensation Law Judge and a panel of the Workers'
Compensation Board determined that claimant was capable of
performing sedentary employment. In adopting Ameduri's
severity F rating, the Board further discredited
Corkhill's opinion as based primarily on claimant's
subjective complaint, notwithstanding Corkhill's
testimony that her subjective complaints comported with his
the Board's findings as to claimant's ability to
perform some type of sedentary work are contrary to the
consistent medical proof presented, the Board's finding
of a permanent partial disability and a 75% loss of
wage-earning capacity is not supported by substantial
evidence in the record (see Matter of Golovashchenko v
Asar Intl. Corp., 153 A.D.3d 1475, 1477 ;
compare Matter of Burgos v Citywide Cent. Ins.
Program, 148 A.D.3d 1493, 1496 ). Claimant
maintains, and we agree, that the record actually warrants a
finding of a permanent total disability. To establish a total
disability, a claimant must demonstrate that he or she
"is totally disabled and unable to engage in any gainful
employment" (Matter of VanDermark v Frontier Ins.
Co., 60 A.D.3d 1171, 1172 ; see
Workers' Compensation Law § 15 ). Given the
severity and permanency of claimant's back condition,
both Ameduri and Corkhill have concluded that she is unable
to engage in gainful employment. The operative standard here
is "gainful" employment not some undefined type of
limited sedentary work. As such, we conclude that the Board
erred in failing to find that claimant sustained a permanent
and Pritzker, JJ., concur.
Aarons, J. (dissenting).
respectfully dissent. Our review is limited to whether the
Workers' Compensation Board's determination is
supported by substantial evidence (see generally 300
Gramatan Ave. Assoc. v State Div of Human Rights, 45
N.Y.2d 176, 181 ). Under that time-honored standard,
because the evidence credited by the Board supports its
finding that claimant had a permanent partial disability and
a 75% loss of wage-earning capacity, the Board's
determination should not be disturbed.
Ameduri, claimant's treating physician, stated in his
written report that claimant had reached maximum medical
improvement with a permanent impairment of the back and noted
a class five condition of the lumbar spine with a severity
ranking of F. Ameduri also found that claimant had a
functional capability of "less than sedentary work"
pursuant to the New York State Guidelines for Determining
Permanent Impairment and Loss of Wage Earning Capacity (2012)
and that she could occasionally sit, stand, walk and lift
objects weighing up to 10 pounds. Within this past year, we
concluded that these findings were consistent with a
classification of a permanent partial disability (see
Matter of Burgos v Citywide Cent. Ins. Program, 148
A.D.3d 1493, 1494-1495 ; see also New York
State Guidelines for Determining Permanent Impairment and
Loss of Wage Earning Capacity at 44-46, 53-54, 71 ).
More significantly, these findings were specifically credited
by the Board. Accordingly, in our view, substantial evidence
supports the Board's determination (see Matter of
Burgos v Citywide Cent. Ins. Program, 148 A.D.3d at
1494-1495; Matter of Curcio v Sherwood 370 Mgt. LLC,
147 A.D.3d 1186, 1187-1188 ; Matter of Campbell v
Interstate Materials Corp., 135 A.D.3d 1276, 1278
majority nonetheless points to the testimony of Ameduri and
Guy Corkhill, the physician who conducted an independent
medical examination on behalf of the workers'
compensation carrier. It is true that both Ameduri and
Corkhill testified at the hearing that claimant had a
permanent total disability. The Board, however, found that
the opinion of Corkhill "cannot be credited"
because it "was based primarily on the claimant's
subjective complaints of pain."  In other words, the
Board made a credibility determination and, under
well-established principles, "this Court accords great
deference to the Board's resolution of issues concerning
conflicting medical evidence and witness credibility"
(Matter of Roman v Manhattan & Bronx Surface Tr.
Operating Auth., 139 A.D.3d 1304, 1305  [internal
quotation marks and citations omitted]; see Matter of
Curcio v Sherwood 370 Mgt. LLC, ...