Opinion
519160
03-26-2015
In the Matter of the Claim of Natasha FLORENTINO, Appellant, v. MOUNT SINAI MEDICAL CENTER et al., Respondents. Workers' Compensation Board, Respondent.
Geoffrey Schotter, New York City, for appellant. Gorman & Rankin, P.C., New York City (David Sanua, New York City, of counsel), for Mount Sinai Medical Center and others, respondents.
Geoffrey Schotter, New York City, for appellant. Gorman & Rankin, P.C., New York City (David Sanua, New York City, of counsel), for Mount Sinai Medical Center and others, respondents.
Before: PETERS, P.J., McCARTHY, ROSE and CLARK, JJ.
Opinion
McCARTHY, J. Appeal from a decision of the Workers' Compensation Board, filed August 16, 2013, which ruled that claimant was not entitled to an award of reduced earnings benefits for 2011.
Claimant worked as an administrative assistant for the employer, and applied for workers' compensation benefits after developing carpal tunnel syndrome. Her claim was established for a work-related injury to her neck, upper back, both shoulders and hands. A Workers' Compensation Law Judge classified claimant with a permanent partial disability in January 2011, noting that she could obtain reduced earnings benefits if she returned to work and earned less than her full wages because of her disability (see Workers' Compensation Law § 15[3][v], [w] ). Claimant thereafter sought reduced earnings benefits for all of 2011. The Workers' Compensation Board rejected her application, finding that the reduction in her earnings did not flow from her disability. Claimant now appeals.
We affirm. Contrary to claimant's contention, because this is “a non-schedule permanent partial disability case where an involuntary withdrawal has not been established, ... [she] bears the burden of demonstrating that ... her reduced earning capacity is due to the disability and not to unrelated factors” (Matter of Launer v. Euro Brokers, 115 A.D.3d 1130, 1130–1131, 983 N.Y.S.2d 128 [2014], lv. denied 23 N.Y.3d 906, 2014 WL 2609556 [2014] ; see Matter of Zamora v. New York Neurologic Assoc., 19 N.Y.3d 186, 191–192, 947 N.Y.S.2d 788, 970 N.E.2d 823 [2012] ). The question of “[w]hether reduced earnings are causally related to the compensable injury is a [factual one] for the Board to resolve and its determination will not be disturbed when supported by substantial evidence” (Matter of Launer v. Euro Brokers, 115 A.D.3d at 1131, 983 N.Y.S.2d 128 ; see Matter of Tawil v. Fallsburg Cent. School Dist., 106 A.D.3d 1314, 1315, 966 N.Y.S.2d 247 [2013] ).
Claimant testified that she spent over 40 hours a week completing her Master's degree, which she accomplished in May 2011. She further spent an average of 10 to 15 hours a week for the entire year attempting to find a distributor for a film that she had produced and, thereafter, to market it. She was not looking for additional work for much of 2011 as a result of these endeavors, but secured a post as an adjunct lecturer that began in August 2011. To the extent that claimant's testimony indicated that she wanted more substantial employment in her field, there is no indication that her inability to find such a position was connected to her disability. Thus, substantial evidence supports the Board's determination that the reduction in claimant's 2011 earnings did not flow, even in part, from her disability (see Matter of Tawil v. Fallsburg Cent.
School Dist., 106 A.D.3d at 1315–1316, 966 N.Y.S.2d 247 ; Matter of Turetzky–Santaniello v. Vassar Bros. Hosp., 302 A.D.2d 706, 707–708, 754 N.Y.S.2d 763 [2003] ; see also Matter of Zamora v. New York Neurologic Assoc., 19 N.Y.3d at 192, 947 N.Y.S.2d 788, 970 N.E.2d 823 ).
ORDERED that the decision is affirmed, without costs.
PETERS, P.J., ROSE and CLARK, JJ., concur.