The Third Department determined the Workers’ Compensation Board properly took into account the claimant’s “vocational factors,” i.e., limited education, language barrier, work history, when setting the appropriate compensation. Claimant suffered a permanent partial disability and had been employed as a landscaper:
Here, … claimant suffered a permanent partial disability, there is no expectation that he will ever return to his former or similar employment as a laborer, and the Board necessarily considered vocational factors when it established his loss of wage-earning capacity. Because the evidence established that claimant did not earn actual wages, the statute authorized the Board to “[fix] in the interest of justice . . . such wage[-]earning capacity as shall be reasonable . . . having due regard to the nature of his injury and his physical impairment” (Workers’ Compensation Law § 15 [5-a]). … [W]e find that the [statute’s] broad discretionary language authorized the Board to consider vocational factors that reflected claimant’s true ability to secure employment, particularly in the absence of evidence to negate claimant’s testimony that his injury contributed to his loss of wage-earning capacity … . Consequently, under the circumstances presented, we perceive no error in the Board’s determination to fix claimant’s wage-earning capacity based on the undisputed evidence of his physical disability and loss of wage-earning capacity resulting from his functional limitations and vocational impediments … . Matter of Rosales v Eugene J. Felice Landscaping, 2016 NY Slip Op 07239, 2nd Dept 11-3-16
WORKERS’ COMPENSATION LAW (VOCATIONAL FACTORS PROPERLY CONSIDERED IN SETTING COMPENSTATION FOR PERMANENTLY DISABLED LABORER)