Till v. Apex Rehab.

• Decision Date: 03 November 2016
• Citation: 2016 N.Y. Slip Op. 07247,40 N.Y.S.3d 661,144 A.D.3d 1231
• Parties: In the Matter of the Claim of Janine TILL, Appellant, v. APEX REHABILITATION et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1231
40 N.Y.S.3d 661
2016 N.Y. Slip Op. 07247

In the Matter of the Claim of Janine TILL, Appellant,
v.
APEX REHABILITATION et al., Respondents.

Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 3, 2016.

40 N.Y.S.3d 662

Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel), for appellant.

Before: EGAN JR., J.P., LYNCH, DEVINE, CLARK and MULVEY, JJ.

CLARK, J.

144 A.D.3d 1232

Appeal from a decision of the Workers' Compensation Board, filed June 3, 2015, which ruled, among other things, that claimant sustained a permanent partial disability and a 15% loss of wage-earning capacity.

In 2012, while working as a nursing assistant, claimant sustained a compensable work-related injury to her back and left shoulder and was awarded benefits. In 2014, a Workers' Compensation Law Judge classified claimant as having sustained a permanent partial disability and a 40% loss of wage-earning capacity. Upon administrative review, the Workers' Compensation Board agreed that claimant had sustained a permanent partial disability, but found that claimant's loss of wage-earning capacity was 15%. Claimant appeals.

Claimant argues that, because Workers' Compensation Law § 15(5–a) limited her wage-earning capacity as a nonworking claimant to no more than 75% of her “former full time actual earnings,” the Board was statutorily prohibited from determining that she had less than a 25% loss of wage-earning capacity under Workers' Compensation Law § 15(3)(w). She asserts that Workers' Compensation Law § 15(3)(w)(xi) and (xii) are in conflict with Workers' Compensation Law § 15(5–a) and that, to reconcile this perceived conflict, we should construe these provisions as applying only to claimants who are employed at the time of classification—i.e., those claimants who are not subject to the 75% restriction imposed by Workers' Compensation Law § 15(5–a). For claimant to prevail on her argument, we must accept the proposition that a nonworking claimant's loss of wage-earning capacity must always be the inverse of his or her wage-earning capacity. Mindful of established principles of statutory construction, and upon our examination of the statutory language and applicable legislative intent, we conclude that it need not be.¹

40 N.Y.S.3d 663

Under well-settled principles of statutory interpretation, a statute is to be viewed as a whole and “its various sections must be considered together and with reference to each other” (People v. Mobil Oil Corp., 48 N.Y.2d 192, 199, 422 N.Y.S.2d 33, 397 N.E.2d 724 [1979] ; see McKinney's Cons. Laws of NY, Book 1, Statutes §§ 92, 97, 98 ). Where a potential conflict exists, all parts of the statute must be given meaning and effect and, if possible, must be “harmonized

144 A.D.3d 1233

to achieve the legislative purpose” (Sanders v. Winship, 57 N.Y.2d 391, 396, 456 N.Y.S.2d 720, 442 N.E.2d 1231 [1982] ; see Heard v. Cuomo, 80 N.Y.2d 684, 689, 594 N.Y.S.2d 675, 610 N.E.2d 348 [1993] ; Matter of Lumpkin v. Department of Social Servs. of State of N.Y., 59 A.D.2d 485, 490, 400 N.Y.S.2d 220 [1977], affd. 45 N.Y.2d 351, 408 N.Y.S.2d 421, 380 N.E.2d 249 [1978], appeal dismissed 439 U.S. 1040, 99 S.Ct. 713, 58 L.Ed.2d 700 [1978] ).

As relevant here, in cases of permanent partial disability that are not amenable to schedule awards, “wage-earning capacity” is used to determine a claimant's weekly rate of compensation. Specifically, in such cases, a claimant's rate of compensation is two thirds of the difference between his or her average weekly wage and his or her wage-earning capacity (see Workers' Compensation Law § 15[3][w] ). Where a claimant is unemployed,...