| Matter of Canales v Pinnacle Foods Group LLC |
| 2014 NY Slip Op 03576 [117 AD3d 1271] |
| May 15, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of the Claim of Maria Canales, Appellant,v Pinnacle Foods Group LLC et al., Respondents. Workers' Compensation Board,Respondent. |
Michael P. Daly, Manlius, for appellant.
Falge & McLean, North Syracuse (John Hvozda of counsel), for Pinnacle FoodsGroup LLC and another, respondents.
Garry, J. Appeal from a decision of the Workers' Compensation Board, filedFebruary 21, 2013, which ruled that claimant sustained a temporary marked partialdisability rather than a temporary total disability for the period from July 6, 2011 toSeptember 27, 2011.
In December 2010, claimant, who had been employed as a production laborer in afood processing plant for 14 years, suffered a work-related knee injury. Her treatingphysician, John Cannizzaro, determined in February 2011 that her level of temporarymedical impairment was 100%; following surgery in April 2011, he found that thisimpairment level had not changed. However, in June and July 2011, he determined thatclaimant's level of temporary impairment was 80%. In July 2011, the workers'compensation carrier's consultant physician, Charles Reina, conducted an independentmedical examination (hereinafter IME) and opined that claimant had a temporary markedpartial disability. As of the date of this IME, the carrier reduced claimant to a partialdisability rate of 80%. Approximately 12 weeks later, in September 2011, an orthopedicsurgeon determined that claimant's level of temporary impairment was 100%. Followinga hearing, a Workers' Compensation Law Judge (hereinafter WCLJ) awardedcompensation to claimant at an 80% temporary disability rate for the 12-week periodbetween the IME and the orthopedic surgeon's determination, and at a total temporarydisability rate thereafter. In February 2013, the Workers' Compensation Board affirmedthe WCLJ's decision. Claimant appeals.
Claimant argues that the Board erred in relying solely upon her level of medicalimpairment and failing to consider vocational factors in determining the compensationrate for her temporary disability during the 12-week period following the IME.Claimant's hearing testimony, given through an interpreter, established that she was 52years old, had completed only three years of primary education before immigrating to theUnited States, and had poor English language skills. Further, her employment experiencewas limited to hotel work and production and farm labor. Such vocational factors areconsidered by the Board in determining "loss of wage-earning capacity" for the purposeof setting the duration of a claimant's permanent partial disability benefits (Workers'Compensation Law § 15 [3] [w]; see Employer: Buffalo Auto RecoveryServ., 2009 WL 5177881, *10, 2009 NY Wrk Comp LEXIS 15501, *27 [WCB No.8070 3905, Nov. 12, 2009]). Claimant argues that, in combination with the nature of herinjury, these factors effectively rendered her unemployable during the period in question,and the Board should have considered them in determining her "wage earning capacity"for the purpose of setting the compensation rate for her temporary disability (Workers'Compensation Law § 15 [5]).
Where, as here, the issue presented to this Court is primarily a matter of statutoryconstruction and analysis, the Board's interpretation is not entitled to deference (see Matter of Belmonte vSnashall, 2 NY3d 560, 565-566 [2004]; Matter of Krausa v Totales Debevoise Corp., 84 AD3d1545, 1546 [2011]). Our objective in this analysis is to discern and apply the intentof the Legislature, which is determined in the first instance by giving effect to the plainmeaning of unambiguous statutory language (see Matter of Albany Law School v New York State Off. of MentalRetardation & Dev. Disabilities, 19 NY3d 106, 120 [2012]; Matter of Wiley v City ofWatertown Fire Dept., 39 AD3d 975, 976-977 [2007], appeal dismissed9 NY3d 948 [2007]). In doing so, we find no error in the Board's statutoryinterpretation.
As pertinent here, the compensation rate for temporary partial disability resulting inreduced earning capacity is based upon the difference between the claimant's pre-injuryaverage wages "and his [or her] wage earning capacity after the accident in the same orother employment" (Workers' Compensation Law § 15 [5]; see Matter of Keefe v AramaticRefreshment Servs. Inc., 110 AD3d 1429, 1430 [2013]). In almost identicallanguage, the compensation rate for permanent partial disabilities that are not amenableto schedule awards is based upon the difference between the claimant's previous wages"and his or her wage-earning capacity thereafter in the same employment or otherwise"(Workers' Compensation Law § 15 [3] [w]; see Matter of Friedman v NewYork City Dept. of Transp., 69 AD3d 1020, 1022 [2010]). For both temporaryand permanent partial disabilities, the "wage earning capacity" of a claimant with noactual earnings is to be set by the Board at a reasonable level not greater than 75% of theclaimant's previous full-time earnings, "having due regard to the nature of his [or her]injury and his [or her] physical impairment" (Workers' Compensation Law§ 15 [5-a]; see Matter of Matise v Munro Waterproofing Co., 293NY 496, 499-500 [1944]). These provisions include no reference to vocational factors.However, when determining a claimant's "loss of wage-earning capacity" in orderto set the duration of permanent partial disability benefits following classification(Workers' Compensation Law § 15 [3] [w] [emphasis added]), the Boardconsiders not just the nature and degree of the injury, but also "work restrictions, [the]claimant's age, and any other relevant factors, with the [claimant's] 'wage earningcapacity' as its inverse" (Employer: Buffalo Auto Recovery Serv., 2009 WL5177881, *10, 2009 NY Wrk Comp LEXIS 15501, *27; see Employer: LongleyJones Mgt. Corp., 2012 WL 1893410, *3, 2012 NYWCLR [LRP] LEXIS 173, * 9[WCB No. 6070 4882, May 21, 2012]; see also Matter of Cameron v Crooked Lake House, 106 AD3d1416 [2013], lv denied 22 NY3d 852 [2013]).
We reject claimant's contention that this analysis should be applied to thedetermination of "wage earning capacity" as the term is used in Workers' CompensationLaw § 15 (5-a). The phrase "loss of wage-earning capacity" was added toWorkers' Compensation Law § 15 (3) (w), but not to any other provision ofthe Workers' Compensation Law, as part of a comprehensive reform in 2007 (seeL 2007, ch 6; see generallyMatter of Raynor v Landmark Chrysler, 18 NY3d 48, 52-55 [2011]). Theaddition of the language in question was specifically intended to establish a newdurational limit on non-schedule permanent partial disability benefits and to align themwith those given for schedule loss of use permanent partial disabilities, which werealready subject to a durational cap (see Matter of Raynor v Landmark Chrysler,18 NY3d at 54-55). The 2007 reforms made no comparable alterations in the statutoryprovisions pertaining to temporary partial disabilities. Accordingly, the statutory plainlanguage establishes that the term "loss of wage-earning capacity" is relevant only to thedetermination of the duration of permanent partial disability benefits at the time ofclassification, and that its addition to Workers' Compensation Law § 15 (3)(w) was not intended to alter the Board's reliance on a claimant's actual earnings ordegree of physical impairment to determine his or her "wage earning capacity" as thatterm is used in Workers' Compensation Law § 15 (5-a). The Board adoptedthe interpretation of the phrase "loss of wage-earning capacity" at issue here toimplement the underlying legislative intent of the 2007 reforms, and correctly limited thisinterpretation to the durational determination (see Employer: Buffalo Auto RecoveryServ., 2009 WL 5177881, *10, 2009 NY Wrk Comp LEXIS 15501, *27). As themedical evidence here established that claimant had a temporary partial disability duringthe 12-week period in question, the Board's decision was supported by substantialevidence and will not be disturbed (see Matter of Hallarman v Hallarman &Hallarman, 124 AD2d 458, 460 [1986]).
Lahtinen, J.P., Stein and Rose, JJ., concur. Ordered that the decision is affirmed,without costs.