THE LAW JUDGE ERRED IN AWARDING THE
CLAIMANT A 45% LOSS OF WAGE-EARNING CAPACITY. The record does not support more then a 37.5% loss of wage-earning capacity.
In cases of permanent partial disability, the loss of wage-earning capacity is evidentiary determination that must be based on the claimant’s medical impairment and functional abilities as well as vocational and other non medical factors. See Van Rensselaer Manor (2017 WL 1825079).
The Judge’s finding of a 3-B impairment rating pf the Board Permanency Guidelines is not in dispute. Given the fact the attending physician did not examine the claimant at the time of his permanency evaluation and he was not familiar with the Guidelines or refer to any portion of the Guidelines in defending his conclusions. Coupled with the clear knowledge and application of the Guidelines evinced by the self-insured employers consultant, Dr. Belmonte, the Judge properly adopted Dr. Belmonte’s findings of a …show more content…
See Matter of Wormley v Rochester City School District ( 126 ad 3d 1257 (2015).
While the Judge in his remarks at the hearing on 04/27/2017, discussed some of the claimants non vocational factors, his discussion was incomplete and his conclusions as to aggravating and mitigating factors does not support a finding of a 45% loss of wage-earning capacity.
In the instant case, the claimant is 54 years of age. This Board has found age was neither a ?????? or mitigating factor for claimants in their fifties. See Grayhound Lines, Inc WL2155299053 (claimant was 51 years of age) and Cives Corporation 2015 WL5299212 (claimant was 57 years of age).
The claimant has a high school diploma and in addition he has three (3) years of service in the military. This should have been considered a mitigating
CLAIMANT A 45% LOSS OF WAGE-EARNING CAPACITY. The record does not support more then a 37.5% loss of wage-earning capacity.
In cases of permanent partial disability, the loss of wage-earning capacity is evidentiary determination that must be based on the claimant’s medical impairment and functional abilities as well as vocational and other non medical factors. See Van Rensselaer Manor (2017 WL 1825079).
The Judge’s finding of a 3-B impairment rating pf the Board Permanency Guidelines is not in dispute. Given the fact the attending physician did not examine the claimant at the time of his permanency evaluation and he was not familiar with the Guidelines or refer to any portion of the Guidelines in defending his conclusions. Coupled with the clear knowledge and application of the Guidelines evinced by the self-insured employers consultant, Dr. Belmonte, the Judge properly adopted Dr. Belmonte’s findings of a …show more content…
See Matter of Wormley v Rochester City School District ( 126 ad 3d 1257 (2015).
While the Judge in his remarks at the hearing on 04/27/2017, discussed some of the claimants non vocational factors, his discussion was incomplete and his conclusions as to aggravating and mitigating factors does not support a finding of a 45% loss of wage-earning capacity.
In the instant case, the claimant is 54 years of age. This Board has found age was neither a ?????? or mitigating factor for claimants in their fifties. See Grayhound Lines, Inc WL2155299053 (claimant was 51 years of age) and Cives Corporation 2015 WL5299212 (claimant was 57 years of age).
The claimant has a high school diploma and in addition he has three (3) years of service in the military. This should have been considered a mitigating