| Matter of Wooding v Nestle USA, Inc. |
| 2010 NY Slip Op 06279 [75 AD3d 1043] |
| July 29, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Rodger C. Wooding, Appellant, vNestle USA, Inc., et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Falge & McLean, P.C., North Syracuse (John I. Hvozda of counsel), for Nestle USA, Inc.and another, respondents.
Cardona, P.J. Appeal from a decision of the Workers' Compensation Board, filed April 10,2009, which, among other things, ruled that claimant did not have a total industrial disability.
Claimant worked at a factory performing manual labor and, in 2003, suffered a compensableinjury to his left arm. The Workers' Compensation Board affirmed a decision of the Workers'Compensation Law Judge finding that claimant had sustained a schedule loss of use to his armbut was not, as he claimed, totally industrially disabled. Claimant appeals and we affirm.
A claimant who suffers from a permanent partial disability may be classified as totallyindustrially disabled if the limitations imposed by the compensable injury, coupled with factorssuch as a limited educational background and work history, render him or her incapable ofgainful employment (see Matter ofBarsuk v Joseph Barsuk, Inc., 24 AD3d 1118, 1118 [2005], lv dismissed 6NY3d 891 [2006], lv denied 7 NY3d 708 [2006]). Whether a claimant sustained a totalindustrial disability is a question of fact, and the Board's resolution thereof will be upheld ifsupported by substantial evidence (seeMatter of Sacco v Mast Adv./Publ., 71 AD3d 1304, 1305[*2][2010]; Matter of Guan v CPC Home Attendant Program, Inc., 50 AD3d1218, 1220 [2008]).
Here, claimant has limited use of his left arm, however, a vocational evaluation found himcapable of performing sedentary work in fields such as sales or customer service with theappropriate training. Although a vocational counselor disagreed, opining that claimant's physicalcondition, when coupled with his age, educational background and employment history,seriously impaired his ability to find employment, the Board's determination concerning issuesof credibility is entitled to deference (see Matter of Sacco v Mast Adv./Publ., 71 AD3dat 1306; Matter of Newman v XeroxCorp., 48 AD3d 843, 844 [2008]). Moreover, the counselor conceded that, despite hisdoubts as to the likelihood of claimant succeeding in retraining, success was possible. Inasmuchas substantial evidence in this record supports the finding that claimant suffered a schedule lossof use, rather than a total industrial disability, the Board's decision will not be disturbed (seeMatter of Newman v Xerox Corp., 48 AD3d at 844).
Claimant's remaining contentions have been examined and found to be lacking in merit.
Rose, Stein, McCarthy and Garry, JJ., concur. Ordered that the decision is affirmed, withoutcosts.