Matter of Florentino v. Mount Sinai Medical Center ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 26, 2015 519160
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In the Matter of the Claim of
NATASHA FLORENTINO,
Appellant,
v
MOUNT SINAI MEDICAL CENTER
et al., MEMORANDUM AND ORDER
Respondents.
WORKERS' COMPENSATION BOARD,
Respondent.
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Calendar Date: February 19, 2015
Before: Peters, P.J., McCarthy, Rose and Clark, JJ.
__________
Geoffrey Schotter, New York City, for appellant.
Gorman & Rankin, PC, New York City (David Sanua, New York
City, of counsel), for Mount Sinai Medical Center and others,
respondents.
__________
McCarthy, J.
Appeal from a decision of the Workers' Compensation Board,
filed August 16, 2013, which ruled that claimant was not entitled
to an award of reduced earnings benefits for 2011.
Claimant worked as an administrative assistant for the
employer, and applied for workers' compensation benefits after
developing carpal tunnel syndrome. Her claim was established for
a work-related injury to her neck, upper back, both shoulders and
hands. A Workers' Compensation Law Judge classified claimant
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with a permanent partial disability in January 2011, noting that
she could obtain reduced earnings benefits if she returned to
work and earned less than her full wages because of her
disability (see Workers' Compensation Law § 15 [3] [v], [w]).
Claimant thereafter sought reduced earnings benefits for all of
2011. The Workers' Compensation Board rejected her application,
finding that the reduction in her earnings did not flow from her
disability. Claimant now appeals.
We affirm. Contrary to claimant's contention, because this
is "a non-schedule permanent partial disability case where an
involuntary withdrawal has not been established, . . . [she]
bears the burden of demonstrating that . . . her reduced earning
capacity is due to the disability and not to unrelated factors"
(Matter of Launer v Euro Brokers, 115 AD3d 1130, 1130-1131
[2014], lv denied 23 NY3d 906 [2014]; see Matter of Zamora v New
York Neurologic Assoc., 19 NY3d 186, 191-192 [2012]). The
question of "[w]hether reduced earnings are causally related to
the compensable injury is a [factual one] for the Board to
resolve and its determination will not be disturbed when
supported by substantial evidence" (Matter of Launer v Euro
Brokers, 115 AD3d at 1131; see Matter of Tawil v Fallsburg Cent.
School Dist., 106 AD3d 1314, 1315 [2013]).
Claimant testified that she spent over 40 hours a week
completing her Master's degree, which she accomplished in May
2011. She further spent an average of 10 to 15 hours a week for
the entire year attempting to find a distributor for a film that
she had produced and, thereafter, to market it. She was not
looking for additional work for much of 2011 as a result of these
endeavors, but secured a post as an adjunct lecturer that began
in August 2011. To the extent that claimant's testimony
indicated that she wanted more substantial employment in her
field, there is no indication that her inability to find such a
position was connected to her disability. Thus, substantial
evidence supports the Board's determination that the reduction in
claimant's 2011 earnings did not flow, even in part, from her
disability (see Matter of Tawil v Fallsburg Cent. School Dist.,
106 AD3d at 1315-1316; Matter of Turetzky-Santaniello v Vassar
Bros. Hosp., 302 AD2d 706, 707-708 [2003]; see also Matter of
Zamora v New York Neurologic Assoc., 19 NY3d at 192).
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Peters, P.J., Rose and Clark, JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court