IN RE NESTLE USA, INC

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Docket Number

No. 508747.

Attorney(S)

Michael P. Daly, Manlius, for appellant. Falge McLean, P.C., North Syracuse (John I. Hvozda of counsel), for Nestle USA, Inc. and another, respondents.

Judges

Cardona, P J.

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Smart Summary

Factual and Procedural Background

Claimant Rodger C. Wooding worked at a factory performing manual labor and sustained a compensable injury to his left arm in 2003. The Workers' Compensation Board affirmed a prior decision by a Workers' Compensation Law Judge, finding that claimant had suffered a schedule loss of use to his arm but was not totally industrially disabled as he claimed. The claimant appealed this determination.

Legal Issues Presented

Whether the claimant, who has a permanent partial disability due to a compensable injury, is totally industrially disabled based on his physical limitations combined with his educational background and work history.
Whether the Workers' Compensation Board's finding that the claimant sustained a schedule loss of use rather than total industrial disability is supported by substantial evidence.

Arguments of the Parties

Appellant's Arguments

The claimant argued that he was totally industrially disabled due to his limited use of his left arm.

Respondents' Arguments

A vocational evaluation indicated the claimant was capable of performing sedentary work, such as sales or customer service, with appropriate training.
A vocational counselor disagreed, opining that the claimant's physical condition combined with his age, education, and work history seriously impaired his ability to find employment, though the counselor conceded that success in retraining was possible.
The respondents relied on the Board's credibility determinations and substantial evidence supporting the schedule loss of use classification rather than total industrial disability.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Barsuk v Joseph Barsuk, Inc., 24 AD3d 1118, 1118	Defines total industrial disability as incapacity for gainful employment due to compensable injury combined with other factors like education and work history.	Used to frame the standard for total industrial disability assessment.
Matter of Sacco v Mast Adv./Publ., 71 AD3d 1304, 1305-1306	Establishes that total industrial disability is a question of fact and that the Board's factual findings will be upheld if supported by substantial evidence; also supports deference to Board's credibility determinations.	Applied to uphold the Board's factual findings and credibility assessments in favor of respondents.
Matter of Guan v CPC Home Attendant Program, Inc., 50 AD3d 1218, 1220	Supports the principle that the Board's factual findings on disability are entitled to deference if supported by substantial evidence.	Reinforced the standard for reviewing the Board's findings on industrial disability.
Matter of Newman v Xerox Corp., 48 AD3d 843, 844	Supports deference to the Board's credibility determinations and factual findings regarding disability.	Used to justify affirming the Board's decision despite conflicting vocational opinions.

Court's Reasoning and Analysis

The court recognized that a permanent partial disability claimant may be deemed totally industrially disabled if the injury's limitations, combined with other factors such as education and work history, prevent gainful employment. The Board found that although claimant had limited use of his left arm, a vocational evaluation supported his ability to perform sedentary work with training. The Board credited this vocational evaluation over the vocational counselor's more pessimistic opinion, emphasizing the counselor’s concession that success in retraining was possible. The court deferred to the Board’s credibility determinations and found substantial evidence supported the conclusion that claimant sustained a schedule loss of use rather than total industrial disability. Consequently, the Board's decision was affirmed.

Holding and Implications

The court affirmed the Workers' Compensation Board's decision, ruling that the claimant did not have a total industrial disability but rather a schedule loss of use to his arm.

This decision directly affects the claimant by denying total industrial disability benefits. No new legal precedent was established, as the court applied existing standards and deferred to the Board's factual findings and credibility assessments.

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In the Matter of the Claim of RODGER C. WOODING, Appellant, v. NESTLE USA, INC., et al., Respondents. WORKERS' COMPENSATION BOARD, Respondent.

Cardona, P J.

Claimant worked at a factory performing manual labor and, in 2003, suffered a compensable injury to his left arm. The Workers' Compensation Board affirmed a decision of the Workers `Compensation Law Judge finding that claimant had sustained a schedule loss of use to his arm but was not, as he claimed, totally industrially disabled. Claimant appeals and we affirm.

A claimant who suffers from a permanent partial disability may be classified as totally industrially disabled if the limitations imposed by the compensable injury, coupled with factors such as a limited educational background and work history, render him or her incapable of gainful employment ( see Matter of Barsuk v Joseph Barsuk, Inc., 24 AD3d 1118, 1118, lv dismissed 6 NY3d 891, lv denied 7 NY3d 708). Whether a claimant sustained a total industrial disability is a question of fact, and the Board's resolution thereof will be upheld if supported by substantial evidence ( see Matter of Sacco v Mast Adv./Publ, 71 AD3d 1304, 1305; Matter of Guan v CPC Home Attendant Program, Inc., 50 AD3d 1218, 1220).

Here, claimant has limited use of his left arm, however, a vocational evaluation found him capable of performing sedentary work in fields such as sales or customer service with the appropriate training. Although a vocational counselor disagreed, opining that claimant's physical condition, when coupled with his age, educational background and employment history, seriously impaired his ability to find employment, the Board's determination concerning issues of credibility is entitled to deference ( see Matter of Sacco v Mast Adv./Publ., 71 AD3d at 1306; Matter of Newman v Xerox Corp., 48 AD3d 843, 844). Moreover, the counselor conceded that, despite his doubts as to the likelihood of claimant succeeding in retraining, success was possible. Inasmuch as substantial evidence in this record supports the finding that claimant suffered a schedule loss of use, rather than a total industrial disability, the Board's decision will not be disturbed ( see Matter of Newman v Xerox Corp., 48 AD3d at 844).

Claimant's remaining contentions have been examined and found to be lacking in merit.

Ordered that the decision is affirmed, without costs.