Gambardella v. N.Y.C. Transit Auth.

204 A.D.3d 1210

167 N.Y.S.3d 213

In the Matter of the Claim of Vincent GAMBARDELLA, Appellant,

v.NEW YORK CITY TRANSIT AUTHORITY, Respondent.

Workers’ Compensation Board, Respondent.

533901

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

Calendar Date: March 21, 2022

Decided and Entered: April 14, 2022

Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel), for appellant.

Jones Jones LLC, New York City (David S. Secemski of counsel), for New York City Transit Authority, respondent.

Letitia James, Attorney General, New York City (Alison Kent–Friedman of counsel), for Workers’ Compensation Board, respondent.

Before: Garry, P.J., Pritzker, Reynolds Fitzgerald, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Appeal from a decision of the Workers’ Compensation Board, filed May 17, 2021, 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 September 2018, claimant, a bus maintainer, sustained various injuries when he lost his balance while trying to lift an 80–pound seat. He subsequently filed a claim for workers’ compensation benefits, and a Workers’ Compensation Law Judge (hereinafter WCLJ) established, and later amended, the claim for work-related injuries to claimant's back, left shoulder and right third finger and found no compensable lost time because claimant did not incur any compensable lost time from his employment and then voluntarily retired on April 1, 2020. Following the submission of medical reports, deposition testimony and a hearing regarding the permanency of claimant's established sites of injury, the WCLJ determined that claimant had sustained a permanent partial disability consisting of a 35% schedule loss of use (hereinafter SLU) of his left arm, a 15.80% SLU of his right third finger and nonschedule permanent impairment of his lower back, with a class 3, severity B ranking, that was amenable to classification. As she was required to do, the WCLJ also found that claimant had sustained a 10% loss of wage-earning capacity. However, because claimant voluntarily retired and was not entitled to receive a nonschedule award, the WCLJ, based upon this Court's decisions in Matter of Taher v. Yiota Taxi, Inc., 162 A.D.3d 1288, 1290, 78 N.Y.S.3d 500 (2018), lv dismissed 32 N.Y.3d 1197, 95 N.Y.S.3d 150, 119 N.E.3d 790 (2019) and Matter of Arias v. City of New York, 182 A.D.3d 170, 174, 120 N.Y.S.3d 203 (2020) and their progeny, granted claimant's request to receive a schedule award notwithstanding his nonschedule classification. Upon administrative appeal, the Workers’ Compensation Board disagreed with the WCLJ, finding that this Court's decisions in Taher and Arias only apply to claimants who have returned to work at preinjury wages at the time of classification, and, because claimant had voluntarily retired, he was not attached to the labor market at the time of classification and therefore not entitled to any award. Claimant appeals, arguing that, because he did not receive a nonschedule award based upon his nonschedule classification due to his voluntary retirement, he is therefore entitled to receive a schedule award for his statutorily enumerated permanent impairments. We agree.

A nonschedule award "is based [up]on a factual determination of the effect that the [permanent partial] disability has on the claimant's future wage-earning capacity" and is mathematically derived from a claimant's average weekly wages and wage-earning capacity ( Matter of Taher v. Yiota Taxi, Inc., 162 A.D.3d at 1289, 78 N.Y.S.3d 500 ; see Workers’ Compensation Law § 15[3][w] ; Matter of Green v. Dutchess County BOCES, 183 A.D.3d 23, 26, 121 N.Y.S.3d 362 [2020], lv dismissed 36 N.Y. 1044, 140 N.Y.S.3d 476, 164 N.E.3d 282 [2021], lv granted 37 N.Y.3d 907, 2021 WL 4163873 [2021] ). On the other hand, an SLU award is designed to compensate for a claimant's "loss of earning power" as a result of anatomical or functional losses or impairments ( Matter of Fox v. Crosbie–Brownlie, Inc., 284 A.D.2d 42, 44, 728 N.Y.S.2d 838 [2001] ) and, as such, " ‘is not allocable to any particular period of disability’ " ( Matter of Briggs v. Village of Hamilton, 136 A.D.2d 442, 444, 527 N.Y.S.2d 639 [1988], quoting Matter of Lynch v. Board of Educ. of City of N.Y., 1 A.D.2d 362, 365, 150 N.Y.S.2d 145 [1956], affd 3 N.Y.2d 871, 166 N.Y.S.2d 313, 145 N.E.2d 27 [1957] ) and is "independent of the time an employee actually loses from work" ( Matter of Landgrebe v. County of Westchester, 57 N.Y.2d 1, 6, 453 N.Y.S.2d 413, 438 N.E.2d 1128 [1982] ; see Matter of Green v. Dutchess County BOCES, 183 A.D.3d at 26, 121 N.Y.S.3d 362 ). That said, "[a] claimant who sustains both schedule and nonschedule injuries in the same accident may receive only one initial award," because SLU and nonschedule awards "are both intended to compensate a claimant for loss of wage-earning capacity sustained in a work-related accident[,] and concurrent payment of an award for a schedule loss and an award for a nonschedule permanent partial disability for injuries arising out of the same work-related accident would amount to duplicative compensation" ( Matter of Taher v. Yiota Taxi, Inc., 162 A.D.3d at 1289–1290, 78 N.Y.S.3d 500 ). "However, in the unique circumstance where no initial award is made based on a nonschedule permanent partial disability classification, a claimant is entitled to an SLU award" for the permanent impairments sustained in the same work-related accident ( id. at 1290, 78 N.Y.S.3d 500 [citation omitted]; accord Matter of Arias v. City of New York, 182 A.D.3d at 174, 120 N.Y.S.3d 203 ; see Matter of Garrison–Bey v. Department of Educ., 187 A.D.3d 1278, 1279, 132 N.Y.S.3d 167 [2020] ).

The Board interprets the rule that we announced in Taher and Arias as requiring that a claimant return to work at preinjury wages in order for that claimant to be eligible to receive an SLU award. To the contrary, the rule that we announced was broader in that we held that a claimant is entitled to an SLU award "in the unique circumstance where no initial award is made based on a nonschedule permanent partial disability classification" ( Matter of Taher v. Yiota...