Third Department Decisions 11-6-14

Today the Court decided two cases dealing with workers; compensation .

In Matter of GIOIA (now know as Patricia Witt), the carrier appealed a decision that among other things calculated claimant’s reduced earnings.

Claimant injured her back in the course of her employment as a nurse’s aide and has an established workers’ compensation claim based upon that injury. In 2011, claimant filed a request or further action to address the issues of reduced earnings, permanency of her disability and wage expectancy. A physician who conducted an independent medical examination for the employer concluded that claimant has a moderate, permanent partial disability. Following a hearing, a Workers’ Compensation Law Judge determined that she had a permanent partial disability and calculated her weekly compensation rate – i.e., two thirds of the difference between what her average weekly wage would be absent injury and her current wage-earning capacity (see Workers’ Compensation Law § 15 [3] [w]), as measured by her degree of disability. Upon claimant’s application for review, the Workers’ Compensation Board increased claimant’s degree of disability and concluded that her wage loss benefits should be based upon her actual reduced earnings from the delicatessen where she now works, as opposed to her degree of disability, and adjusted her weekly awards accordingly. The employer and its workers’ compensation carrier (hereinafter collectively referred to as the employer) appealed.

“[B]efore awarding wage replacement benefits in a non-schedule permanent partial disability case,” the Board must determine “whether a claimant has maintained a sufficient attachment to the labor market” (Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186, 191 [2012] [internal quotation marks and citation omitted]) – i.e., that the claimant’s “reduced earning capacity is due to the disability, not . . . factors unrelated to the disability” (id. [internal quotation marks and citations omitted]), such as “age, [or] general economic conditions'” (Burns v Varriale, 9 NY3d 207, 216 [2007], quoting Matter of Meisner v United Parcel Serv., 243 AD2d 128, 130 [1998], lv dismissed 93 NY2d 848 [1999], lv denied 94 NY2d 757 [1999]).

Once it is determined that a claimant’s reduced earning capacity remains involuntary and related to his or her permanent partial disability, “the wage earning capacity of an injured employee . . . shall be determined by his [or her] actual earnings” while disabled (Workers’ Compensation Law § 15 [5-a]; see Burns v Varriale, 9 NY3d at 216-217). In that regard, the Court of Appeals has repeatedly explained that, for claimants who have demonstrated that they remained attached to the labor market, “where actual earnings during the period of the disability are established, wage earning capacity must be determined exclusively by the actual earnings of the injured employee without evidence of capacity to earn more or less during such disability period” (Matter of Matise v Munro Waterproofing Co., 293 NY 496, 500 [1944]; accord Burns v Varriale, 9 NY3d at 217; Matter of Croce v Ford Motor Co., 307 NY 125, 130 [1954]).

The employer argues here that the Board should have considered evidence of claimant’s ability to earn more and awarded her benefits “consistent with her determined loss of wage earning capacity/degree of disability.” This is precisely what the cases of the Court of Appeals forbid, and we reject the employer’s contrary interpretation of relevant case law. “Evidence of capacity to earn more or less” (Matter of Matise v Munro Waterproofing Co., 293 NY at 500), which cannot be considered, includes medical evidence of the claimant’s degree of disability. The Board noted claimant’s undisputed testimony regarding her employer’s accommodation of her medical restrictions, her extensive search for additional work and her doctor’s instruction that she limit herself to parttime work. After concluding that claimant had not voluntarily withdrawn from the labor market, the Board correctly determined that claimant’s award should be based on her actual earnings as long as she remained attached to the labor market, and calculated her award on that basis. Inasmuch as the Board’s determination in that regard is supported by substantial evidence, we decline to disturb it (see Matter of Meisner v United Parcel Serv., 243 AD2d at 130-131; cf. Matter of Korczyk v City of Albany, 264 AD2d 908, 910 [1999]).

In Matter of Noboa , the carrier appealed a decision which ruled that claimant sustained an accidental injury in the course of her employment and awarded workers’ compensation benefits.

Claimant was a sales associate at the employer’s Kennedy Airport store. When the airport and the store closed early and the public transportation that claimant normally took home from the airport was suspended due to a major snow storm, the employer terminated claimant’s shift – although she was paid for the remainder of the day – and transported her and other employees from the store using a van with no seats that was ordinarily used to transport merchandise.

During the ride, claimant injured her spine as a result of being repeatedly thrown against the van door. In February 2011, claimant filed a claim for workers’ compensation benefits, which was controverted by the employer and its workers’ compensation carrier. Following hearings, a Workers’ Compensation Law Judge disallowed the claim, finding that the injury did not arise out of and in the course of claimant’s employment.

On appeal, the Workers’ Compensation Board reversed and awarded benefits, and the employer and the carrier now appeal. We affirm. Generally, travel to and from the place of employment is not considered to be within the scope of employment and, thus, injuries sustained during that period are not compensable (see Matter of Borgeat v C & A Bakery, 89 AD3d 1296, 1296 [2011]; Matter of Davis v Labor Ready, 69 AD3d 1214, 1215 [2010]). However, an exception arises when the employer takes responsibility for transporting employees, particularly where the employer is in exclusive control of the means of conveyance (see Matter of Holcomb v Daily News, 45 NY2d 602, 606-607 [1978]; Matter of Davis v Labor Ready, 69 AD3d at 1215). The key determination in establishing compensability is whether there is “some nexus etween the accident and the employment” (Matter of Lemon v New York City Tr. Auth., 72 NY2d 324, 329 [1988]; see Matter of Monachino v Vigneri & Sons, 300 AD2d 797, 797-798 [2002]). Here, it is undisputed that the employer furnished the van for transportation, one of claimant’s supervisors was the driver and, further, claimant’s injuries were sustained during the course of that transportation while she was still on the clock and being paid. Inasmuch as the employer took responsibility for the inherent risks of transporting its employees from the work site and had exclusive control of the conveyance, we find no reason to disturb the Board’s determination that claimant’s injury arose out of and in the course of her employment (see e.g. Michigan Mut. Liab. Co. v State of New York, 31 AD2d 780, 780 [1969], affd 25 NY2d 647 [1969]; Matter of Cornelius v Brock, 27 AD2d 604, 605 [1966]).