| Matter of Cameron v Crooked Lake House |
| 2013 NY Slip Op 03895 [106 AD3d 1416] |
| May 30, 2013 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Thomas H. Cameron III,Appellant, v Crooked Lake House et al., Respondents.Workers' Compensation Board,Respondent. |
—[*1] Sullivan, Keenan, Oliver & Violando, LLP, Albany (Michael D. Violando ofcounsel), for Crooked Lake House and another, respondents.
Egan Jr., J. Appeal from a decision of the Workers' Compensation Board, filedNovember 23, 2011, which ruled that claimant had sustained a causally related loss ofearning capacity.
In April 2007, claimant sustained a work-related injury to his lower back whilemoving a commercial dishwasher at the Crooked Lake House in Rensselaer County andthereafter successfully applied for workers' compensation benefits. In October 2010, aWorkers' Compensation Law Judge classified claimant as having sustained a marked(75%) permanent partial disability and a 75% loss of wage-earning capacity. Uponreview, the Workers' Compensation Board modified and remitted the matter for furtherproceedings to determine the extent to which claimant's disability impaired hiswage-earning capacity. Ultimately, the Board adopted the 75% loss of wage-earningcapacity found by the Workers' Compensation Law Judge (see Workers'Compensation Law § 15 [3] [w]), and claimant now appeals.
We affirm. Inasmuch as claimant has not worked since sustaining his partialdisability, the Board is authorized to "fix such wage earning capacity as shall bereasonable . . . having due regard to the nature of his injury and his physicalimpairment" (Workers' Compensation Law § 15 [5-a]; see Matter of McCann vMcCormack's Garage, Inc., 203 App Div 387, 388-389 [1922]). In fixing thatcapacity, the Board relies upon various factors, including "the nature and degree of thework-related permanent physical and/or mental impairment, work restrictions, [and]claimant's age" (Employer—Buffalo Auto Recovery Svd, 2009 WL5177881, *10, 2009 NY Wrk Comp LEXIS 15501, *27 [WCB No. 8070 3905, Nov. 12,2009]). Here, in addition to the medical evidence documenting claimant's degree ofimpairment, the Board considered claimant's testimony in this regard, as well as his ageand his efforts to train for or seek other work within his limitations. Deferring to theBoard's assessments of credibility, substantial evidence supports its decision thatclaimant's established, partial disability has deprived him of 75% of his wage-earningcapacity (see generally Matter of Haibel v C. G. Haibel, Inc., 101 AD2d 678, 679[1984]). Claimant's remaining argument was not raised before the Board and, as such, isnot properly before us.
Lahtinen, J.P., Stein and McCarthy, JJ., concur. Ordered that the decision is affirmed,without costs.