You are here: / / EXERTIONAL ABILITY OF LESS THAN SEDENTARY WORK DOES NOT EQUATE TO A FINDING...

EXERTIONAL ABILITY OF LESS THAN SEDENTARY WORK DOES NOT EQUATE TO A FINDING OF PERMANENT TOTAL DISABILITY, PERMANENT PARTIAL DISABILTIY FINDING AFFIRMED.

The Third Department, over a two-justice dissent, determined the evidence supported the Workers’ Compensation Board’s permanent partial disability finding. Claimant argued she was totally disabled and contended the Board’s finding she has an exertional ability of “less than sedentary work” equated to a finding of permanent total disability. On that issue, the Third Department wrote:

Under the Board guidelines, physicians are required to perform an evaluation of a claimant’s functional capabilities, including his or her exertional abilities (see New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 44-46 [2012]). The finding of a claimant’s exertional ability is a factor to be considered by the Board in determining the claimant’s loss of wage-earning capacity … . The loss of wage-earning capacity is used to establish the duration of benefits for claimants that have sustained a permanent partial disability … . “In contrast, a permanent total disability is established where the medical proof shows a claimant is totally disabled and unable to engage in any gainful employment. The duration of benefits is not an issue in the permanent total disability context for the simple reason that there is no expectation that a claimant found to have such a disability will rejoin the work force” … . Accordingly, a finding that a claimant has an exertional ability of performing less than sedentary work, while a factor to consider in setting the duration of a permanently partially disabled claimant’s benefits, is not dispositive in the context of establishing the claimant’s overall disability. Rather, the exertional ability to work is applicable only to those claimants already found to have sustained a permanent partial disability and, therefore, are expected to rejoin the work force. Matter of Burgos v Citywide Cent. Ins. Program, 2017 NY Slip Op 02489, 3rd Dept 3-30-17

 

You might also like
QUESTION OF FACT WHETHER DRIVER WITH RIGHT OF WAY HAD TIME TO TAKE EVASIVE ACTION TO AVOID A CAR CROSSING HIS PATH TO MAKE A LEFT TURN (THIRD DEPT).
IN APPROVING A WIND TURBINE INSTALLATION THE STATE BOARD ON ELECTRIC GENERATION AND SITING AND THE ENVIRONMENT PROPERLY REFUSED TO CONSIDER LOCAL LAWS ENACTED BY THE TOWN AFTER THE EVIDENTIARY HEARING WAS CLOSED; THE LOCAL LAWS SOUGHT TO IMPOSE A MORATORIUM ON THE PROJECT (THIRD DEPT).
INSURANCE BROKER ENGAGED IN UNTRUSTWORTHY CONDUCT STEMMING FROM A MISLEADING AD FOR VIATICAL SETTLEMENT AGREEMENTS AND WAS PROPERLY FINED.
THE COMPLAINT STATED A CAUSE OF ACTION FOR BREACH OF CONTRACT; THE COMPLAINT ALLEGED THE AGREEMENT TO CONVEY A FARM TO A PARTNERSHIP WAS SUBJECT TO AN EXCEPTION TO THE STATUTE OF FRAUDS FOR PART PERFORMANCE (THIRD DEPT).
THE CANDIDATE SIGNED THE SUBSCRIBING WITNESS STATEMENT WHICH INDICATED EACH VOTER SIGNED THE DESIGNATING PETITION IN HIS PRESENCE, WHICH WAS NOT THE CASE, DESIGNATING PETITION WAS PROPERLY INVALIDATED BASED UPON THE CANDIDATE’S PARTICIPATION IN FRAUDULENT ACTIVITY (THIRD DEPT).
PURSUANT TO ECL 23-2711, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION DID NOT HAVE THE AUTHORITY TO ISSUE A MINING PERMIT BECAUSE THE TOWN LAW PROHIBITED MINING (THIRD DEPT).
VOLUNTARY DISCONTINUANCES OF PRIOR FORECLOSURE ACTIONS AND THE RELATED CORRESPONDENCE DID NOT UNAMBIGUOUSLY DE-ACCELERATE THE DEBT; THEREFORE THE FORECLOSURE ACTION IS TIME-BARRED; TWO-JUSTICE DISSENT ARGUED THE CORRESPONDENCE DE-ACCELERATED THE DEBT (THIRD DEPT).
THE PHRASE ‘WITHIN FIVE DAYS’ IN CPLR 511, A CHANGE OF VENUE STATUTE, DOES NOT IMPOSE A WAITING PERIOD FOR A MOTION TO CHANGE VENUE, THE MOTION MAY BE MADE WITHIN THE FIVE DAYS (THIRD DEPT), ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

BUILDING AND HOME INSPECTORS WERE EMPLOYEES OF ENGINEERING FIRM. RECORDS OF PROCEEDINGS BEFORE THE CIVILIAN COMPLAINT REVIEW BOARD ARE POLICE...