Cruz v. Suffolk Cnty. Police Dep't

185 A.D.3d 1138

127 N.Y.S.3d 161

In the Matter of the Claim of Michael CRUZ, Appellant,

v.SUFFOLK COUNTY POLICE DEPARTMENT et al., Respondents.

Workers' Compensation Board, Respondent.

530305

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: June 8, 2020

Decided and Entered: July 2, 2020

Miller & Caggiano, LLP, Bohemia (Vanessa Cruz of counsel), for appellant.

Cherry, Edson & Kelly, LLP, Melville (Ralph E. Magnetti of counsel), for Suffolk County Police Department and another, respondents.

Before: Egan Jr., J.P., Lynch, Clark, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P.

Appeal from a decision of the Workers' Compensation Board, filed April 2, 2019, which ruled, among other things, that claimant was not simultaneously entitled to an award for a schedule loss of use and a permanent partial disability classification.

In 2014, claimant was injured in a motor vehicle accident while working as a police officer. He established a workers' compensation claim for injuries to his neck, left shoulder and right knee, as well as right and left wrist injuries due to bilateral carpal tunnel syndrome. The Workers' Compensation Board, by decision filed December 23, 2014, found that claimant had a permanent medical impairment of the cervical spine with a B severity ranking, which is not amenable to a schedule loss of use (hereinafter SLU) finding, and directed the matter be returned to the hearing calendar for a determination of loss of wage-earning capacity.

Medical reports and depositions were submitted and, following a hearing, a Workers' Compensation Law Judge (hereinafter WCLJ) found that claimant was permanently partially disabled with a 15% loss of wage-earning capacity, but he was not entitled to awards based upon a nonscheduled permanent partial disability classification as his current position as a police sergeant did not result in any reduced earnings. Based upon the medical evidence, the WCLJ found that claimant sustained a 15% SLU of his right hand, left hand and left arm and a 7.5% SLU of his right leg, entitling him to an SLU award. The Board modified the WCLJ's decision by rescinding the SLU award and finding that claimant's permanent medical impairment to the systemic area of his neck is subject to a nonscheduled classification encompassing all of claimant's injuries and, therefore, he is not entitled to an SLU award. Claimant appeals.

For the reasons set forth in Matter of Arias v. City of New York , 182 A.D.3d 170, 120 N.Y.S.3d 203 (2020), we find that the Board's disregard of Matter of Taher v. Yiota Taxi, Inc. , 162...