| Matter of Guan v CPC Home Attendant Program, Inc. |
| 2008 NY Slip Op 02933 [50 AD3d 1218] |
| April 3, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Ping Guan, Appellant, v CPCHome Attendant Program, Inc., et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Weiss, Wexler & Wornow, New York City (Matthew E. Weerth of counsel), for CPC HomeAttendant Program, Inc. and another, respondents.
Malone Jr., J. Appeal from a decision of the Workers' Compensation Board, filed December29, 2006, which, among other things, ruled that claimant did not have a total industrial disability.
Claimant, who was born in 1952, moved from China to the United States in 1999 andbecame a home health aide after completing a three-week course taught in Chinese. In September2003, she was working in such capacity when she injured herself while lifting a 180-poundclient. As a result, she filed applications for workers' compensation benefits for injuries to herlower back, left leg, hands and wrists. The Workers' Compensation Board rendered a decisionfinding that claimant had sustained work-related injuries to her left leg, hands and wrists, whichwas later amended to include her back. She was subsequently awarded benefits for the periodSeptember 2003 through May 2004 at the total disability rate of $326 per week.
Thereafter, a Workers' Compensation Law Judge found that claimant had a causally [*2]related disability of a moderate-marked degree and continuedbenefits from May 2004 through March 2005 at a reduced rate. On appeal, the Board found,among other things, that claimant had a continuing causally related disability of amoderate-marked degree subsequent to May 2004, but that further development of the record wasnecessary on the issue of causally related loss of earnings subsequent to March 2005. Followingfurther fact-finding hearings, a Workers' Compensation Law Judge found that claimant waspermanently partially disabled resulting in a total industrial disability and awarded her benefits of$326 per week. On appeal, the Board ruled that she did not have a total industrial disability andreduced her benefits to $163 per week. Claimant appeals.
Initially, we note that a permanently partially disabled claimant may be found to have a totalindustrial disability " 'where the medical limitations imposed by the underlying disability,coupled with other factors, such as the claimant's educational background and work history,render the claimant incapable of salaried employment' " (Matter of Forte v City &Suburban, 292 AD2d 738, 739 [2002], quoting Matter of Utley v General MotorsCorp., 285 AD2d 843, 843 [2001]; see Matter of Campbell v AC Rochester Prods., Div.of Gen. Motors Corp., 268 AD2d 711, 711-712 [2000]). The existence of a total industrialdisability is a question of fact to be resolved by the Board whose decision will be upheld ifsupported by substantial evidence (see Matter of Spangenberg v View Point RealtyCorp., 178 AD2d 809, 810 [1991]).
In the case at hand, the Board credited the opinion of one of claimant's treating physiciansover the contrary opinion of the workers' compensation carrier's medical expert in finding thatclaimant suffered from a permanent partial disability that rendered her unable to perform many ofthe tasks required of a home health aide. Its credibility determination in this regard is entitled todeference (see Matter of Schmeling vNew Venture Gear, 45 AD3d 1071, 1072 [2007]). The Board also considered evidencerelating to claimant's educational background, training, vocational skills and age as presentedthrough the report and testimony of claimant's vocational rehabilitation expert. The expert opinedthat, based upon claimant's lack of English language proficiency, advancing age, limitededucation and training, impaired manual dexterity, reduced physical stamina and limitedattention span, she was unemployable. Significantly, the Board adopted this finding andconcluded that such factors, combined with claimant's medical limitations, "render[ed] herunable to return to any type of employment" (emphasis added). Nevertheless, itconcluded that claimant did not sustain a total industrial disability. Inasmuch as the Board'sconclusion is inconsistent with its own factual findings, as well as the uncontradicted opinion ofthe vocational rehabilitation expert, its decision is not supported by substantial evidence andcannot be upheld (see Matter of Barsukv Joseph Barsuk, Inc., 24 AD3d 1118, 1119 [2005], lv dismissed 6 NY3d 891[2006], lv denied 7 NY3d 708 [2006]; cf. Matter of Newman v Xerox Corp., 48 AD3d 843, 844 [2008]).
Cardona, P.J., Mercure, Spain and Stein, JJ., concur. Ordered that the decision is reversed,with costs, and matter remitted to the Workers' Compensation Board for further proceedings notinconsistent with this Court's decision.