In the Matter of the Claim of Olga Oyola, Claimant, v. New York City Department of School Food & Nutrition Services, Appellant. Workers' Compensation Board, Respondent

In the Matter of the Claim of Olga Oyola, Claimant, v New York City Department of School Food & Nutrition Services, Appellant. Workers’ Compensation Board, Respondent. [67 NYS3d 727] [MAJORITY — Devine, J.] Devine, J. Appeal from a decision of the Workers’ Compensation Board, filed April 18, 2016, which ruled that claimant sustained a 70% loss of wage-earning capacity. Claimant, a cafeteria worker, tripped and fell while at work, and the ensuing workers’ compensation claim was established for injuries to her back, left elbow, left knee and left shoulder. Following a hearing, a Workers’ Compensation Law Judge (hereinafter WCLJ) classified claimant with a permanent partial disability and found that she had a 70% loss of wage-earning capacity and would be entitled to wage loss benefits for 375 weeks should she stop working (see generally Workers’ Compensation Law § 15 [3] [w] [vii]). The employer appealed from the decision and argued that claimant could not be found to have a loss of wage-earning capacity given that she had returned to work and was earning her preaccident wages. The Workers’ Compensation Board disagreed and affirmed, prompting this appeal. We affirm. Loss of wage-earning capacity is set at the time of classification and refers to “the maximum number of weeks over which a claimant with a permanent partial disability is entitled to receive benefits” (Matter of Till v Apex Rehabilitation, 144 AD3d 1231, 1233 [2016], lv denied 29 NY3d 909 [2017]; see Workers’ Compensation Law § 15 [3] [w]). As such, “despite the fact that [a] claimant [is] working at full wages, the Board [is] entitled to establish . . . loss of wage-earning capacity, which sets a fixed durational limit on potential benefits in the event that [a] claimant incurs a subsequent reduction of wages as the result of his [or her] work-related injuries” (Matter of Perez v Bronx Lebanon Hosp. Ctr., 151 AD3d 1159, 1160 [2017]). The Board’s decision falls squarely within this rule, and the employer’s argument that this Court has left any ambiguity on the issue is without merit (see Matter of Perez v Bronx Lebanon Hosp. Ctr., 151 AD3d at 1160; Matter of De Ruggiero v City of N.Y. Dept. of Citywide Admin. Servs., 150 AD3d 1493, 1494 [2017]; Matter of Barrett v New York City Dept. of Transp., 147 AD3d 1167, 1167-1168 [2017]). Accordingly, we will not disturb the Board’s decision. McCarthy, J.P., Egan Jr., Mulvey and Rumsey, JJ., concur. Ordered that the decision is affirmed, without costs.