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Workers' Compensation Board

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Case # 69412261
Date of Accident: 06/01/1992
District Office: Syracuse
Employer: Paul De Lima Co
Carrier: Special Funds Sec 25-A
Carrier ID No.: W997001
Carrier Case No.: Special Funds 25A
Date of Filing of Decision: 09/06/2016
Claimant's Attorney: Christine Scofield, Esq.
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

* This decision also pertains to the following case(s): 60103482, and 60403937.

The Full Board, at its meeting on July 19, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on March 22, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant is entitled to a reduced earnings award.

The Workers' Compensation Law Judge (WCLJ) found that the claimant was entitled to ongoing reduced earnings awards.

The Board Panel majority affirmed the WCLJ's decision.

The dissenting Board Panel member would find that awards should be made at the prior classification rate of $179.49, rather than the reduced earnings rate of $322.45.

The Special Funds Conservation Committee (SFCC) filed an application for Mandatory Full Board Review on April 18, 2016, arguing that the claimant's reduction in wages are not causally related to her disability.

The claimant filed an untimely rebuttal.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

The claimant has three compensable work-related back injuries. The first injury occurred on June 1, 1992, while claimant was employed as a machine operator (WCB # 69412261). Claimant's average weekly wage (AWW) in the 1992 claim was set at $280.00. The claimant had a second work-related low back injury on February 21, 2001, while working as a legal secretary (WCB # 60103482). Claimant's AWW in the 2001 claim was set at $444.03. The most recent injury occurred on March 18, 2004, while claimant was employed as a lawn technician (WCB # 60403937). The AWW in the 2004 claim was set at $591.72.

By a decision filed April 28, 2011, claimant was classified permanently partially disabled, liability was apportioned 28% to the 1992 claim, 32% to the 2001 claim, and 40% to the 2004 claim, and continuing payments were directed at the rate of $179.49 per week, subject to apportionment.

At a hearing on January 28, 2015, awards were made from November 16, 2011, to January 29, 2015, at the tentative rate of $322.47 per week, continuing benefits were directed at the tentative rate of $179.49, and the case was continued for development of the record on the issue of claimant's entitlement to a reduced earnings award (notice of decision filed February 3, 2015).

The claimant testified on April 1, 2015, that she is self-employed as a hair dresser in Floyd, Virginia. The claimant testified that the majority of her business is doing haircuts, but she also does facials, hair coloring and dreadlocks. The claimant testified that she opened the store front for her business on October 10, 2014, and before this she worked out of her home. The claimant chose the location in Floyd because it was a central location in a spread out community. The claimant testified that her rent is $695.00 a month and her electric bill is $100.00 to $150.00 dollars a month. The claimant testified that her business operated at a loss.

With regard to her back, the claimant testified that she begins to develop soreness when she stands for over an hour, and she needs to rest for a few hours. The claimant testified that she also uses an inversion table to help her recover quicker.

On cross-examination, the claimant testified that she became a licensed hair dresser in 2007. Prior to moving to Floyd in August 2014, the claimant was living in Florida. The claimant testified that she was cutting hair and babysitting. Since June 2012, the claimant has been earning $25.00 to $70.00 a week.

The claimant testified that she cuts hair for 10 to 15 hours a week. The claimant admitted that the store front in Floyd was the first time she cut hair in a spa setting rather than her home. The claimant charges $15.00 for haircuts and gets most of her business from referrals. The claimant works two to three days a week. The claimant testified that business was picking up, but she was still taking walk-ins and not turning people away. Unfortunately, she had to close the shop on March 15, 2015, and she began cutting hair at home again.

By a reserved decision filed June 15, 2015, the WCLJ found that the claimant was entitled to reduced earnings award, subject to the apportionment between the three claims, at the tentative rate of $322.48, from January 29, 2015, forward.

LEGAL ANALYSIS

"Whether claimant's injuries caused reduced earnings is a factual issue within the province of the Board to determine . . . Notably, a claimant's work-related permanent partial disability allows an inference that a subsequent loss of wages is attributable to physical limitations. While a reduced earnings award may be denied where the reduction in earning capacity results from age, economic conditions or other factors unrelated to the disability, such an award will not be disturbed absent proof that the reduction was solely due to such unrelated factors" (Matter of Coyle v Intermagnetics Corp., 267 AD2d 621 [1999] [internal quotation marks and citations omitted]).

In making a reduced earnings award, it is improper to consider medical evidence of the claimant's degree of disability (Matter of Gioia v Cattaraugus County Nursing Home, 122 AD3d 970 [2014]). Absent a complete and voluntary withdrawal from the labor market, under Workers' Compensation Law (WCL) § 15(5-a), the Board must measure reduced earnings as two-thirds of the difference between the post-injury earnings and the pre-injury average weekly wage. "[T]he 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'" (Gioia, 122 AD3d 970 [2014] [citations omitted]).

In this case, the Full Board finds that the claimant's efforts to engage in self-employment work as a hair dresser has been limited by her work-related back injuries. The claimant was previously classified with a permanent partial disability, and the Full Board finds that it can be inferred that claimant's disability contributed to her ongoing wage loss. The SFCC failed to present sufficient proof that the claimant's loss of wages are due to wholly unrelated factors.

Therefore, the Full Board finds that the preponderance of the evidence supports a finding that the claimant is entitled to ongoing reduced earnings awards.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed June 15, 2015, is AFFIRMED. No further action is planned by the Board at this time.