Meisner v. United Parcel Service

• Decision Date: 18 June 1998
• Citation: 675 N.Y.S.2d 164,243 A.D.2d 128
• Parties: , 1998 N.Y. Slip Op. 6172 In the Matter of the Claim of Thomas MEISNER, Appellant, v. UNITED PARCEL SERVICE et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 164

675 N.Y.S.2d 164

243 A.D.2d 128, 1998 N.Y. Slip Op. 6172

In the Matter of the Claim of Thomas MEISNER, Appellant, v. UNITED PARCEL SERVICE et al., Respondents Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division Third Department.

June 18, 1998.

Sullivan, Cunnigham, Keenan & Mraz (John M. Oliver, of counsel), Albany, for appellant.

Walsh & Hacker (Peter J. Walsh, of counsel), Albany, for Liberty Mutual Insurance Company, respondent.

Before: MIKOLL, J.P., MERCURE, WHITE, SPAIN and CARPINELLO, JJ.

MIKOLL, Justice Presiding.

Appeal from a decision of the Workers' Compensation Board, filed March 7, 1996, which ruled that claimant was not entitled to an award for reduced earnings.

This appeal presents a novel question with respect to a claimant's entitlement to a reduced earnings award. Where a part-time employee sustains a compensable injury resulting in a mild permanent partial disability precluding resumption of his previous employment, but not otherwise limiting the number of hours he could work, is he to be denied a reduced earnings award where he obtains part-time employment at a lower hourly rate on the ground that his diminished earning capacity is "self-imposed"? We think not, and reverse the decision of the Workers' Compensation Board.

Claimant was employed on a part-time basis by United Parcel Service (hereinafter UPS). He worked 25 hours per week during peak season (the end of November through Christmas) and otherwise 20 hours per week at an hourly rate of $8.50. ¹ He had been so employed for two years, and testified that he intended to continue in that position until he attained full-time status. On July 16, 1991, claimant injured his back while loading and unloading packages in the course of his employment. As a result of this injury, he stopped working on August 1, 1991 and filed a claim for workers' compensation benefits. From July 18, 1991 to December 3, 1991, claimant received a partial disability award of $111.47 per week, which was subsequently reduced to $27.87 per week for the period of December 3, 1991 to December 24, 1991.

On December 24, 1991, UPS' workers' compensation insurance carrier suspended payments and, following a challenge thereto by claimant, a Workers' Compensation Law Judge (hereinafter WCLJ) ordered payments continued at a temporary rate of $27.87. Claimant received these payments through March 11, 1993, at which time the carrier again ceased making payments. In 1993, claimant became employed for the first time since his injury, working 25 hours per week as a clerk in his father's business at the rate of $5 per hour. He testified that the hours and wages were set by his father and that he worked as many hours as were made available to him. Nothing in the record suggests that additional working hours were available to claimant.

Claimant again challenged the carrier's cessation of payments and a hearing was held before a WCLJ, who found, based upon the testimony of claimant's treating physicians, that he had "a permanent partial disability, mild in degree, as a result of the compensable injury" and that he was entitled to a reduced earnings award for the period of his employment in his father's business. The WCLJ directed further submissions on the issue of claimant's earnings. On review, however, the Board modified the WCLJ's decision to the extent that it found no entitlement to reduced earnings after April 1993, determining that claimant voluntarily limited his wages. The Board based this finding upon testimony that while claimant was restricted from heavy lifting and was unable to return to his prior work at UPS, there were no restrictions on the number of hours he could work in his capacity as an office clerk in his father's business. Essentially, the Board concluded that claimant suffered no reduced earning capacity because by working more hours, albeit at a reduced rate, he could eventually attain his preinjury weekly earnings. Translating this finding into figures, if claimant had worked 25 hours per week at UPS and earned $212.50 (utilizing the 1991 wage of $8.50 per hour), he could earn the same sum by working 42.5 hours per week in his present employment. ²

As a preliminary matter, we note that the Board's decision appears to have left intact the WCLJ's finding that claimant sustained a mild permanent partial disability and could not return to his prior work. Such a finding permits an inference of lost wages therefrom (see, Matter of Yerry v. New York State Workers' Compensation Bd., 93 A.D.2d 931, 932, 462 N.Y.S.2d 319; Matter of Miller v. Pan Am. World Airways, 46 A.D.2d 718, 360 N.Y.S.2d 293; Matter of Mazziotto v. Brookfield Constr. Co., 40 A.D.2d 245, 247, 338 N.Y.S.2d 1001)....