Matter of Roman v. Manhattan & Bronx Surface Transit Operating Authority , 32 N.Y.S.3d 379 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: May 19, 2016 521979
________________________________
In the Matter of the Claim of
ERIC ROMAN,
Appellant,
v
MANHATTAN & BRONX SURFACE MEMORANDUM AND ORDER
TRANSIT OPERATING AUTHORITY,
Respondent.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: April 26, 2016
Before: Peters, P.J., Lahtinen, Egan Jr., Devine and Mulvey, JJ.
__________
Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel),
for appellant.
Weiss, Wexler & Wornow, PC, New York City (J. Evan Perigoe
of counsel), for Manhattan & Bronx Surface Transit Operating
Authority, respondent.
__________
Lahtinen, J.
Appeal from a decision of the Workers' Compensation Board,
filed February 9, 2015, which ruled, among other things, that
claimant sustained a permanent moderate partial disability and a
60% loss of wage-earning capacity.
In November 2010, claimant, a bus driver, was assaulted and
beaten by a passenger and sustained work-related injuries to his
head, neck, face, nose, ribs and chest. Claimant subsequently
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applied and received workers' compensation benefits, and his
claim was established for each site of injury including
posttraumatic stress disorder. Thereafter, a Workers'
Compensation Law Judge (hereinafter WCLJ) found that, due to his
causally-related psychiatric impairment, claimant sustained a
permanent partial disability, was totally industrially disabled
as a result of the impairment and, when taking into consideration
vocational factors of education and experience, had a loss of
wage-earning capacity of 99%. Upon review, the Workers'
Compensation Board modified the decision of the WCLJ, finding,
among other things, that claimant had a permanent moderate
partial disability, that there was insufficient evidence to
support the WCLJ's finding that claimant had a total industrial
disability and that claimant had a loss of wage-earning capacity
of 60%. Claimant now appeals.
We affirm. Claimant contends that the Board's finding that
he was permanently disabled only in the moderate range was not
supported by substantial evidence. We cannot agree. "It is well
settled that this Court accords great deference to the Board's
resolution of issues concerning conflicting medical evidence and
witness credibility, and the Board may accept or reject portions
of a medical expert's opinion" (Matter of Campbell v Interstate
Materials Corp., 135 AD3d 1276, 1277 [2016] [internal quotation
marks, brackets and citations omitted]; accord Matter of Malerba
v Ameron Global, Inc., 117 AD3d 1302, 1302-1303 [2014]). Here,
although claimant's physician stated that claimant had a
permanent impairment of 85% due to posttraumatic stress disorder,
depression and agoraphobia, the physician acknowledged that he
did not specialize in psychiatry or psychology and further
acknowledged that claimant had not reported any problems with
activities of daily living or with traveling on his own to
medical appointments. Indeed, claimant, who lives alone,
testified that he is able to drive his own vehicle and to take
care of himself and his abode without assistance, and claimant is
comfortable speaking, reading and writing English. The
employer's psychiatric consultant — who examined claimant on
several occasions, conducted an independent medical examination
of claimant and concluded that claimant has a permanent moderate
psychiatric disability — also noted that claimant does not have
suicidal ideation, cognitive impairments or impaired judgment or
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insight. As the Board was empowered to resolve the conflicting
medical evidence in reaching its conclusion, we find that the
Board's decision that claimant sustained a causally-related
permanent moderate partial psychiatric disability is supported by
substantial evidence, and there is no basis upon which to disturb
that decision (see Matter of Cicciarelli v Westchester Health
Care Corp., 86 AD3d 733, 734 [2011]; Matter of Mearns v Sunoco,
Inc., 77 AD3d 1045, 1046 [2010]).
Equally unpersuasive is claimant's contention that
substantial evidence does not support the Board's finding that
claimant sustained a loss of wage-earning capacity of 60%. In
order to fix the duration of benefits in a permanent partial
disability case that is not amenable to a schedule award, the
Board is obliged to determine a claimant's "loss of wage-earning
capacity" (Workers' Compensation Law § 15 [3] [w]; see Matter of
Wormley v Rochester City Sch. Dist., 126 AD3d 1257, 1258 [2015];
Matter of Canales v Pinnacle Foods Group LLC, 117 AD3d 1271, 1273
[2014]). 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 claimant's age" (Matter of Wormley v Rochester
City Sch. Dist., 126 AD3d at 1258 [internal quotation marks,
brackets and citations omitted]; see Matter of Canales v Pinnacle
Foods Group LLC, 117 AD3d at 1273). Here, in establishing
claimant's loss of wage-earning capacity, the Board properly
considered his functional abilities and limitations in light of
his psychiatric impairment, the fact that he only possessed a
high school education, his age, his previous work experience,
which the Board found to include additional marketable and
transferrable job skills, and his proficiency in the English
language (see Matter of Schirizzo v Citibank NA-Banking, 128 AD3d
1293, 1294 [2015]; see also Employer: We Care Transportation,
Inc., 2014 WL 3752256, *2, 2014 NY Wrk Comp LEXIS 04845, *5-6
[WCB 8050 1872, July 25, 2014]; New York State Guidelines for
Determining Permanent Impairment and Loss of Wage Earning
Capacity at 47-49 [2012]). Thus, deferring to the Board's
assessment of credibility and assessment of the record evidence,
we find that the Board's establishment of a 60% loss of wage-
earning capacity is supported by substantial evidence (see Matter
of Baczuk v Good Samaritan Hosp., 132 AD3d 1033, 1035 [2015];
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Matter of Wormley v Rochester City Sch. Dist., 126 AD3d at 1258).
Finally, substantial evidence supports the Board's finding
that claimant is not totally industrially disabled. Although
"[a] claimant who has a permanent partial disability may
nonetheless be classified as totally industrially disabled where
the limitations imposed by the work-related disability, coupled
with other factors, such as limited educational background and
work history, render the claimant incapable of gainful
employment" (Matter of Rose v Roundpoint Constr., 124 AD3d 1033,
1034 [2015] [internal quotation marks and citations omitted]; see
Matter of Williams v Preferred Meal Sys., 126 AD3d 1259, 1259
[2015]), the record evidence demonstrates that, while claimant
would not be able to operate a passenger bus safely, he has held
various other types of employment in the food service,
construction and cable television industries and continues to
operate a motor vehicle without assistance and possesses a
commercial driver's license. Accordingly, we find that
substantial evidence supports the Board's finding that claimant
is not totally industrially disabled as a result of his permanent
partial disability (see Matter of Wooding v Nestle USA, Inc., 75
AD3d 1043, 1044 [2010]; Matter of Newman v Xerox Corp., 48 AD3d
843, 844 [2008]). Claimant's remaining contentions, including
that the Board's decision exhibited bias and denied him due
process of law, have been examined and found to be unavailing
(cf. Matter of Person v Li Maintenance Ad, 66 AD3d 1063, 1064
[2009], lv denied 14 NY3d 708 [2010]; Matter of Knight v New York
State & Local Employees' Retirement Sys., 266 AD2d 774, 776
[1999]).
Peters, P.J., Egan Jr., Devine and Mulvey, JJ., concur.
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ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court