The Third Department rejected the argument by the permanently disabled claimant that, because of a conflict between two applicable statutes, she could not be deemed to have sustained anything less than a 25% loss of wage-earning capacity. The Third Department determined the two statutory provisions were not in conflict and the evidence supported a 15% loss of wage-earning capacity:
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). * * *
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, wage-earning capacity is fixed by the Board — subject to a 75% cap (see Workers’ Compensation Law § 15 [5-a]). In contrast, “loss of wage-earning capacity,” a term that was added in 2007 as part of a comprehensive reform of the Workers’ Compensation Law (see L 2007, ch 6, § 4), is used at the time of classification to set the maximum number of weeks over which a claimant with a permanent partial disability is entitled to receive benefits (see Workers’ Compensation Law § 15 [3] [w]). For instance, where, as here, a claimant is found to have sustained a 15% loss of wage-earning capacity, he or she is entitled to receive benefits for 225 weeks (see Workers’ Compensation Law § 15 [3] [w] [xii]). Matter of Till v Apex Rehabilitation, 2016 NY Slip Op 07247, 3rd Dept 11-3-16
WORKERS’ COMPENSATION LAW (NONWORKING CLAIMANT SUBJECT TO THE 75% CAP ON WAGE-EARNING CAPACITY IS NOT AUTOMATICALLY ENTITLED TO NO LESS THAN 25% LOSS OF WAGE- EARNING CAPACITY FOR PURPOSES OF DETERMINING THE DURATION OF BENEFITS)