IN RE CLAIM OF BARSUK

Citation Codes

Equivalent Citations

citation codes

Docket Number

96227.

Judges

Robert S. Rose

See more information ...

Smart Summary

Factual and Procedural Background

In 1997, the claimant, Joseph Barsuk, suffered a near amputation of his right arm after falling into a scrap metal shearing machine during maintenance work. He subsequently applied for and received workers' compensation benefits. In 2003, a Workers' Compensation Law Judge ruled that the claimant was not totally industrially disabled but had a 90% schedule loss of use of his right arm, awarding benefits accordingly. The Workers' Compensation Board affirmed this decision upon administrative review. The claimant appealed this affirmation to the Appellate Division of the Supreme Court of New York, Third Department.

Legal Issues Presented

Whether the claimant, who has a permanent partial disability quantified as a 90% schedule loss of use of the right arm, should be classified as totally industrially disabled given his additional limitations.
Whether the Workers' Compensation Board's determination denying total industrial disability is supported by the record and should be upheld on appeal.

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 Forte v. City Suburban, 292 AD2d 738, 739	Establishes that a claimant with a permanent partial disability may be found totally industrially disabled when combined with other factors such as education and work history.	Used to support that total industrial disability is a factual determination for the Board and that the Board's decision must be supported by the record.
Matter of Utley v. General Motors Corp., 285 AD2d 843 (2001)	Confirms that total industrial disability depends on limitations from the work-related injury and additional factors affecting employability.	Referenced to affirm the standard of review and the factual nature of total industrial disability determinations.
Matter of Campbell v. AC Rochester Prods., Div. of Gen. Motors Corp., 268 AD2d 711, 711-712	Supports the principle that the Board's findings on total industrial disability are factual and should stand if supported by evidence.	Applied to emphasize deference to the Board's factual findings unless unsupported by the record.

Court's Reasoning and Analysis

The court recognized that although the claimant was found to have a 90% schedule loss of use of his right arm, total industrial disability is a broader factual determination that includes other factors such as age, education, and work history. The court noted that the medical experts unanimously agreed on the 90% loss of use, and the vocational rehabilitation expert testified that the claimant’s combined limitations rendered him incapable of gainful employment in any capacity. Since there was no evidence contradicting this conclusion, the court found that the Board’s decision denying total industrial disability was unsupported by the record and therefore could not be upheld.

Holding and Implications

The court reversed the Workers' Compensation Board’s decision and remitted the matter for further proceedings consistent with this opinion.

The direct effect of this decision is that the claimant is to be recognized as totally industrially disabled based on the record. No new legal precedent was established beyond reaffirming the standards for reviewing total industrial disability determinations by the Board.

Show full summary ...

In the Matter of the Claim of JOSEPH BARSUK, Appellant, v. JOSEPH BARSUK, INC., et al., Respondents. WORKERS' COMPENSATION BOARD, Respondent.

ROSE, J.

In 1997, claimant suffered a near amputation of his right arm when he fell into a scrap metal shearing machine on which he was performing maintenance. As a result of this accident, claimant applied for and received workers' compensation benefits. In 2003, a Workers' Compensation Law Judge rejected claimant's position that he was totally industrially disabled, determined that he had a 90% schedule loss of use of the right arm and made a corresponding award. Upon administrative review, the Workers' Compensation Board affirmed, prompting this appeal by claimant.

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 ( see Matter of Forte v. City Suburban, 292 AD2d 738, 739; Matter of Utley v. General Motors Corp., 285 AD2d 843, 843 [2001]; Matter of Campbell v. AC Rochester Prods., Div. of Gen. Motors Corp., 268 AD2d 711, 711-712). Whether a claimant has a total industrial disability is a factual issue to be resolved by the Board and the Board's determination will not be disturbed so long as it is supported by the record ( see Matter of Forte v. City Suburban, supra at 739; Matter of Utley v. General Motors Corp., supra at 843; Matter of Campbell v. AC Rochester Prods., Div. of Gen. Motors Corp., supra at 712). Our review of the record in this case reveals that the medical experts agree that claimant has a 90% loss of use of the right arm and claimant's vocational rehabilitation expert testified that, when this restriction is combined with claimant's age, educational limitations and difficulty focusing, claimant is not a viable candidate for employment in any capacity. As there is no evidence to the contrary, the only conclusion supported by the record is that claimant is totally industrially disabled as a result of his work-related disability. Thus, the Board's decision is without support and cannot be upheld.

Ordered that the decision is reversed, with costs, and matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision.