Calendar Date: December 17, 2019
F. Clennan, Ronkonkoma, for appellant.
Jones, LLC, New York City (David Secemski of counsel), for
Westchester Community College, respondent.
Before: Lynch, J.P., Clark, Mulvey, Devine and Reynolds
REYNOLDS FITZGERALD, J.
from a decision of the Workers' Compensation Board, filed
October 15, 2019, which ruled, among other things, that
claimant sustained a 55% loss of wage-earning capacity.
2013, claimant, a then 45-year-old technical assistant and
part-time teacher for the employer, filed a claim for
workers' compensation benefits based upon exposure to
mold and chemicals at his workplace, and his claim
subsequently was established for, among other things, mold
exposure, reactive airway disease and fibromyalgia. Following
claimant's testimony and the depositions of numerous
medical professionals, a Workers' Compensation Law Judge
(hereinafter WCLJ) classified claimant with a permanent
partial disability and a 78% loss of wage-earning capacity
noting that claimant was capable of performing sedentary
work. Upon review, a panel of the Workers' Compensation
Board modified the WCLJ's decision, finding that claimant
had sustained a 55% loss of wage-earning capacity. In so
doing, the Board panel citing claimant's educational
background and his various certifications in jewelry making
agreed that claimant was capable of performing sedentary
work. Following mandatory full Board review, the Board upheld
the modification to the WCLJ's decision, finding that
claimant had sustained a 55% loss of wage-earning capacity.
This appeal by claimant ensued.
affirm. Preliminarily, we reject claimant's assertion
that the Board failed to adequately explain the basis for its
decision. The Board summarized the testimony offered by the
various medical professionals, set forth the statutory and
decisional law applicable to determining claimant's loss
of wage-earning capacity and analyzed the relevant factors as
applied to claimant's particular situation. The mere fact
that the Board concluded that a reduction in claimant's
loss of wage-earning capacity was warranted does not render
its decision inadequate, nor did the Board's decision
deprive claimant of due process.
to the merits, "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" (Matter of Varrone v Coastal Envt.
Group, 166 A.D.3d 1269, 1270  [internal quotation
marks and citations omitted], lv denied 32 N.Y.3d
917 ; see Matter of Lesane v City of New York
Police Dept., 153 A.D.3d 1112, 1113 ; Matter
of Smith v New York City Hous. Auth., 147 A.D.3d 1184,
1185 ). In so doing, "the Board must consider
several factors, including the nature and degree of the
work-related permanent impairment and the claimant's
functional capabilities and vocational issues, such as the
claimant's education, training, skills, age and
proficiency in the English language" (Matter of
Lesane v City of New York Police Dept., 153 A.D.3d at
1113; see Matter of Varrone v Coastal Envt. Group,
166 A.D.3d at 1270; Matter of Burgos v Citywide Cent.
Ins. Program, 148 A.D.3d 1493, 1495 ,
affd 30 N.Y.3d 990');">30 N.Y.3d 990 ; New York State Guidelines
for Determining Permanent Impairment and Loss of Wage Earning
Capacity § 9.3, at 47-49 ). Notably, we accord
"great deference" to the Board's resolution of
conflicting medical opinions, and the Board is free to
"accept or reject portions of a medical expert's
opinion" (Matter of Lesane v City of New York Police
Dept., 153 A.D.3d at 1113 [internal quotation marks and
citations omitted]; see Matter of Saintval v AMN
Healthcare, 165 A.D.3d 1364, 1367 ).
physician who performed an independent medical examination of
claimant testified that he found no objective medical
evidence of any pulmonary disease, and even claimant's
treating physician, Eckardt Johanning, acknowledged that any
respiratory issues that claimant had were controlled with
medication and seemed to be improving. As a result, according
to Johanning, claimant's primary disabling condition was
his fibromyalgia, which resulted in, among other things,
"severe joint aches and muscle aches" and an
"antalgic gait." In this regard, although
claimant's rheumatologist, Bruce Solitar, testified that
claimant could not work in any capacity because the chronic
pain from his fibromyalgia made it impossible for claimant to
concentrate, Solitar acknowledged that "pretty much all
fibromyalgia evaluations are subjective" because there
is no objective medical test for the condition. Johanning
similarly testified that claimant could not work due to
"problems with ambulation" and rated claimant's
exertional ability as "less than sedentary work,"
but claimant's pain management specialist rated claimant
as capable of performing sedentary work.
claimant's functional and vocational capabilities,
although claimant reported that he no longer drove a vehicle,
was incapable of performing even his "most basic"
daily tasks and rarely left his home, Solitar testified that
claimant could drive occasionally and sometimes came to his
appointments unaccompanied. Solitar further believed that
claimant was independent in terms of his activities of daily
living. Johanning offered similar testimony, noting that
claimant could perform his activities of daily living and,
despite difficulties ambulating, typically arrived at his
appointments without either the cane or walker that had been
prescribed for him and did not require assistance either
disrobing or getting on or off of the examination table.
Additionally, as noted by the Board, claimant was 49 years
old at the time of classification, had a college education
and various certifications in jewelry making, was previously
employed as a technical assistant and adjunct faculty for the
employer, possessed basic computer skills and could speak,
read and write in the English language. Under these
circumstances, and granting due deference to the Board's
resolution of credibility issues and its evaluation of the
relevant medical evidence, substantial evidence supports the
establishment of a 55% loss of wage-earning capacity (see
Matter of Lesane v City of New York Police Dept., 153
A.D.3d at 1113; see generally Matter of Smith v New York
City Hous. Auth., 147 A.D.3d 1184, 1185-1186 ).
Claimant's remaining arguments, to the extent not
specifically addressed, have been examined and found to be
lacking in merit.
J.P., Clark, Mulvey and ...