| Matter of Newman v Xerox Corp. |
| 2008 NY Slip Op 01039 [48 AD3d 843] |
| February 7, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Robert Newman, Appellant, v XeroxCorporation et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Buckner & Kourofsky, Rochester (Edward G. Nicosia of counsel), for Xerox Corporationand another, respondents. Hamberger & Weiss, Rochester (Ronald E. Weiss of counsel), for Monroe County SepticService and another, respondents.
Carpinello, J. Appeal from a decision of the Workers' Compensation Board, filed June 20,2007, which ruled that claimant did not have a total industrial disability.
In 1984, 1987 and 1988, claimant sustained compensable injuries to his neck, shoulder andback—two while employed by Xerox Corporation and the third while employed byMonroe County Septic Service. Claimant ceased working in 1989, but was able to obtain hisGED in 1990. Claims were eventually established, claimant was determined to be permanentlypartially disabled and liability was apportioned with respect to the three injuries. As is pertinenthere, in 2005 claimant raised the issue of total industrial disability, but the Workers'Compensation Board ultimately determined that claimant had failed to prove that he was totallyindustrially disabled. Claimant now appeals.
"A claimant who has a permanent partial disability may nonetheless be classified as [*2]totally industrially disabled where the limitations imposed by thework-related disability, coupled with other factors, such as limited educational background andwork history, render the claimant incapable of gainful employment" (Matter of Barsuk v Joseph Barsuk, Inc.,24 AD3d 1118, 1118 [2005], lv dismissed 6 NY3d 891 [2006], lv denied 7NY3d 708 [2006] [citations omitted]; see Matter of Utley v General Motors Corp., 285AD2d 843, 843 [2001]; Matter of Campbell v AC Rochester Prods., Div. of Gen. MotorsCorp., 268 AD2d 711, 711-712 [2000]). The issue of whether a claimant has a totalindustrial disability is a question of fact for the Board to resolve, and the Board's determinationwill not be disturbed if supported by substantial evidence (see Matter of Barsuk v JosephBarsuk, Inc., 24 AD3d at 1119; Matter of Utley v General Motors Corp., 285 AD2dat 843; Matter of Campbell v AC Rochester Prods., Div. of Gen. Motors Corp., 268AD2d at 712; Matter of Spangenberg v View Point Realty Corp., 178 AD2d 809,809-810 [1991]).
We begin by observing that the resolution of conflicting medical evidence is the province ofthe Board (see Matter of Yanarella v IBM Corp., 195 AD2d 620, 621-622 [1993];Matter of Prouty v Monroe Contrs. Equip., 178 AD2d 698, 699 [1991]) and we find nobasis upon which to disturb the Board's crediting of the report of claimant's treating physician,which listed claimant's work restrictions as "bending, pushing, pulling and lifting over 25pounds." This report, coupled with the testimony of the vocational rehabilitation counselor whomet with claimant, reviewed his records and testified that employment opportunities existed foran individual with claimant's background and his lifting and movement restrictions, establishedthat claimant was capable of being gainfully employed, although not in manual labor work as hepreviously had been (see Matter of Campbell v AC Rochester Prods., Div. of Gen. MotorsCorp., 268 AD2d at 712; Matter of Gaff v North Star Trucking, 242 AD2d 758[1997], lv denied 91 NY2d 803 [1997]; Matter of Mastan v Nashua Tape Prods.,219 AD2d 766 [1995]). Consequently, inasmuch as claimant provided no evidence of any searchfor suitable employment since he ceased working, substantial evidence supports the Board'sdetermination that claimant was not totally industrially disabled (see Matter of Gaff v NorthStar Trucking, 242 AD2d at 758).
Peters, J.P., Rose, Kane and Malone Jr., JJ., concur. Ordered that the decision is affirmed,without costs.