NEWMAN v. XEROX CORP

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Docket Number

No. 501884.

Attorney(S)

Robert Newman, Rochester, appellant pro se. Buckner Kourofsky, Rochester (Edward G. Nicosia of counsel), for Xerox Corporation and another, respondents. Hamberger Weiss, Rochester (Ronald E. Weiss of counsel), for Monroe County Septic Service and another, respondents.

Judges

Carpinello, J.

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Smart Summary

Factual and Procedural Background

Robert Newman, the claimant and appellant, sustained three compensable work-related injuries to his neck, shoulder, and back in 1984, 1987, and 1988, two while employed by Xerox Corporation and one while employed by Monroe County Septic Service. He ceased working in 1989 but obtained his GED in 1990. Claims for these injuries were established, and he was determined to be permanently partially disabled with liability apportioned among the three injuries. In 2005, Newman raised the issue of total industrial disability, but the Workers' Compensation Board ruled that he failed to prove total industrial disability. Newman appealed this decision.

Legal Issues Presented

Whether the claimant, who has a permanent partial disability, is totally industrially disabled due to the limitations imposed by his work-related injuries combined with other factors such as limited education and work history.
Whether the Workers' Compensation Board's determination that the claimant is not totally industrially disabled is supported by substantial evidence.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Barsuk v Joseph Barsuk, Inc., 24 AD3d 1118	Defines total industrial disability as a classification for claimants with permanent partial disability when combined limitations render them incapable of gainful employment.	Used to establish the standard that total industrial disability depends on combined factors including work-related disability and claimant's background; affirmed that the Board's finding is a question of fact.
Matter of Utley v General Motors Corp., 285 AD2d 843	Supports the principle that total industrial disability is a factual determination for the Board.	Reinforced the Board's role in resolving factual disputes about disability status.
Matter of Campbell v AC Rochester Prods., Div. of Gen. Motors Corp., 268 AD2d 711	Addresses the standards for determining total industrial disability and the Board's discretion in evaluating evidence.	Applied to affirm that the claimant was capable of gainful employment given his work restrictions and vocational opportunities.
Matter of Spangenberg v View Point Realty Corp., 178 AD2d 809	Supports the substantial evidence standard in reviewing Board determinations on disability.	Referenced to confirm that the Board's decision will not be disturbed if supported by substantial evidence.
Matter of Yanarella v IBM Corp., 195 AD2d 620	Confirms that resolution of conflicting medical evidence is within the Board's province.	Used to uphold the Board's crediting of the treating physician's report over other evidence.
Matter of Prouty v Monroe Contrs. Equip., 178 AD2d 698	Supports the Board's authority to resolve conflicting medical evidence.	Applied to sustain the Board's assessment of the claimant's medical restrictions.
Matter of Gaff v North Star Trucking, 242 AD2d 758	Establishes that failure to demonstrate a search for suitable employment is relevant to total disability determination.	Used to support the conclusion that claimant was not totally disabled due to lack of evidence of job search efforts.
Matter of Mastan v Nashua Tape Prods., 219 AD2d 766	Addresses evaluation of vocational rehabilitation evidence in disability cases.	Applied to validate the vocational counselor's testimony that suitable employment opportunities existed.

Court's Reasoning and Analysis

The court recognized that the determination of total industrial disability is a factual question reserved for the Workers' Compensation Board and will not be overturned if supported by substantial evidence. The Board credited the treating physician's report, which limited the claimant's ability to bend, push, pull, and lift over 25 pounds. This medical evidence, combined with testimony from a vocational rehabilitation counselor who identified available employment opportunities consistent with these restrictions and the claimant's background, established that the claimant was capable of gainful employment, although not in manual labor. Furthermore, the claimant failed to provide evidence of any job search since ceasing work. These factors collectively supported the Board's conclusion that the claimant was not totally industrially disabled.

Holding and Implications

The court affirmed the Workers' Compensation Board's decision that the claimant did not prove total industrial disability.

The direct effect of this decision is that the claimant remains classified as permanently partially disabled rather than totally disabled, which affects his entitlement to benefits. The opinion does not establish new precedents or broader legal implications beyond upholding the Board's factual findings and evidentiary standards.

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In the Matter of the Claim of ROBERT NEWMAN, Appellant, v. XEROX CORPORATION et al., Respondents. WORKERS' COMPENSATION BOARD, Respondent.

Carpinello, J.

In 1984, 1987 and 1988, claimant sustained compensable injuries to his neck, shoulder and back — two while employed by Xerox Corporation and the third while employed by Monroe County Septic Service. Claimant ceased working in 1989, but was able to obtain his GED in 1990. Claims were eventually established, claimant was determined to be permanently partially disabled and liability was apportioned with respect to the three injuries. As is pertinent here, in 2005 claimant raised the issue of total industrial disability, but the Workers' Compensation Board ultimately determined that claimant had failed to prove that he was totally industrially disabled. Claimant now appeals.

"A claimant who has a permanent partial disability may nonetheless be classified as totally industrially disabled where the limitations imposed by the work-related disability, coupled with other factors, such as limited educational background and work history, render the claimant incapable of gainful employment" ( Matter of Barsuk v Joseph Barsuk, Inc., 24 AD3d 1118, 1118, lv dismissed 6 NY3d 891, lv denied 7 NY3d 708 [citations omitted]; see Matter of Utley v General Motors Corp., 285 AD2d 843, 843; Matter of Campbell v AC Rochester Prods., Div. of Gen. Motors Corp., 268 AD2d 711, 711-712). The issue of whether a claimant has a total industrial disability is a question of fact for the Board to resolve, and the Board's determination will not be disturbed if supported by substantial evidence ( see Matter of Barsuk v Joseph Barsuk, Inc., 24 AD3d at 1119; Matter of Utley v General Motors Corp., 285 AD2d at 843; Matter of Campbell v AC Rochester Prods., Div. of Gen. Motors Corp., 268 AD2d at 712; Matter of Spangenberg v View Point Realty Corp., 178 AD2d 809, 809-810).

We begin by observing that the resolution of conflicting medical evidence is the province of the Board ( see Matter of Yanarella v IBM Corp., 195 AD2d 620, 621-622; Matter of Prouty v Monroe Contrs. Equip., 178 AD2d 698, 699) and we find no basis upon which to disturb the Board's crediting of the report of claimant's treating physician, which listed claimant's work restrictions as "bending, pushing, pulling and lifting over 25 pounds." This report, coupled with the testimony of the vocational rehabilitation counselor who met with claimant, reviewed his records and testified that employment opportunities existed for an individual with claimant's background and his lifting and movement restrictions, established that claimant was capable of being gainfully employed, although not in manual labor work as he previously had been ( see Matter of Campbell v AC Rochester Prods., Div. of Gen. Motors Corp., 268 AD2d at 712; Matter of Gaff v North Star Trucking, 242 AD2d 758, lv denied 91 NY2d 803; Matter of Mastan v Nashua Tape Prods., 219 AD2d 766). Consequently, inasmuch as claimant provided no evidence of any search for suitable employment since he ceased working, substantial evidence supports the Board's determination that claimant was not totally industrially disabled ( see Matter of Gaff v North Star Trucking, 242 AD2d at 758).

Ordered that the decision is affirmed, without costs.