Calendar Date: June 6, 2018Before: Devine, J.P., Clark, Mulvey, Rumsey and Pritzker, JJ.__________Aaron Zimmerman, Syracuse, for appellant.William O’Brien, State Insurance Fund, Liverpool (Honor A.Sherman of counsel), for State Insurance Fund, respondent.__________Rumsey, J.Appeal from a decision of the Workers’ Compensation Board,filed April 10, 2017, which ruled that claimant was not entitledto a benefit rate greater than the rate established at the timethat he was classified with a permanent partial disability.Claimant, a dairy farmer, was injured in April 2015 whileworking on a farm when a cow backed up and struck him in thechest. He filed a claim for workers’ compensation benefits, anda Workers’ Compensation Law Judge (hereinafter WCLJ) establishedhis case for a work-related injury involving a fractured sternum.Claimant continued to work following this incident even though heexperienced pain that was aggravated by certain activities.In August 2016, after conflicting medical reports weresubmitted by claimant’s treating orthopedist and an orthopedistwho examined him on behalf of the State Insurance Fund(hereinafter the carrier) regarding the severity of claimant’sinjury and his functional limitations, a hearing was conductedbefore a WCLJ on the issue of permanency. At that hearing, theparties resolved these issues by entering into a stipulation thatprovided: (1) for the period September 11, 2015 to December 31,2015, claimant had no compensable lost time or reduced earnings;(2) for the period after December 31, 2015 to August 1, 2016,claimant had a tentative reduced earnings rate of $141.50 perweek, with the carrier to continue payments thereafter at thetentative reduced earnings rate of $125 per week; and (3)claimant had a loss of wage-earning capacity of 45%. Notably, inexplaining the stipulation to claimant, his counsel informed himthat he would receive a benefit of $169.65 per week based uponhis “45% disability” if he were not working. The WCLJ issued adecision consistent with the parties’ stipulation classifyingclaimant as having a permanent partial disability under Workers’Compensation Law § 15 (3) (w) with a loss of wage-earningcapacity of 45%, setting a cap on wage loss benefits of 300 weeksand awarding benefits at the tentative reduced earnings rate of$125 per week.One week after the hearing, claimant stopped working onthe advice of his orthopedist. The orthopedist issued updatedreports that initially increased the percentage of claimant’stemporary impairment to 100% from his prior assessment of 50%,but then reduced the percentage to 75%. In October 2016, at therequest of claimant’s counsel, a WCLJ conducted a hearing todetermine if claimant’s benefit rate should be increased basedupon these reports. The WCLJ concluded that it should andawarded benefits at varying rates as follows: (1) for the periodAugust 2, 2016 through August 8, 2016, benefits were awarded atthe tentative reduced earnings rate of $125 per week; (2) for theperiod August 8, 2016 through September 19, 2016, benefits wereawarded at the temporary total disability rate of $377 per week;and (3) for the period September 19, 2016 through October 14,2016 and thereafter, benefits were awarded at the temporarypartial disability rate of $282.75 per week. The carrierappealed to the Workers’ Compensation Board seeking modificationof the WCLJ’s decision by reducing the awards from August 8, 2016forward to the rate of $169.65 per week, a rate corresponding toclaimant’s 45% loss of wage-earning capacity. The Board modifiedthe WCLJ’s decision accordingly, and this appeal by claimantensued.Claimant argues that the Board erroneously modified theWCLJ’s decision and should have determined the amount of his wageloss benefits after he stopped working based upon the degree ofhis permanent physical impairment under Workers’ Compensation Law§ 15 (5-a), taking into consideration the updated reports of histreating orthopedist, rather than basing it on the percentage ofhis loss of wage-earning capacity under Workers’ Compensation Law§ 15 (3) (w). Initially, we agree with claimant that wage-earning capacity and loss of wage-earning capacity are distinctconcepts. Wage-earning capacity is used to determine aclaimant’s rate of compensation taking into consideration thenature of his or her injury and his or her physical impairment(see Workers’ Compensation Law § 15[5-a]; Matter of Rosales v Eugene J. Felice Landscaping, 144 AD3d1206, 1208-1209 [2016], lv denied 29 NY3d 909 [2017]; Matter ofCanales v Pinnacle Foods Group., 117 AD3d 1271, 1273 [2014]) andcan fluctuate based upon the claimant’s employment status (seeMatter of Perez v Bronx Lebanon Hosp. Ctr., 151 AD3d 1159, 1160[2017]; Matter of Barrett v New York City Dept. of Transp., 147AD3d 1167, 1168 [2017]). Loss of wage-earning capacity, on theother hand, “‘is used at the time of classification to set themaximum number of weeks over which a claimant with a permanentpartial disability is entitled to receive benefits’” (Matter ofBarrett v New York City Dept. of Transp., 147 AD3d at 1167-1168,quoting Matter of Till v Apex Rehabilitation, 144 AD3d 1231, 1233[2016], lv denied 29 NY3d 909 [2017]; see Workers’ CompensationLaw § 15 [3] [w]; Matter of Canales v Pinnacle Foods Group, 117AD3d at 1274).Notwithstanding the foregoing, the parties here enteredinto a stipulation resolving matters relevant to the issue ofpermanency that was intended to include the benefit rate to bepaid if claimant stopped working following his classification.Otherwise, there would have been no reason for claimant’s counselto inform claimant at the time the stipulation was executed that,in the event he stopped working, he would receive a weeklybenefit rate of $169.65 based upon his “45% disability.”Significantly, this stipulation was approved by the WCLJ andincorporated into her decision. Accordingly, it is binding onthe parties (see 12 NYCRR 300.5 [b] [2]), and there has been noshowing of fraud, collusion, mistake or other grounds warrantingits invalidation (see Matter of Dukes v Capitol Formation Inc.,213 AD2d 756, 757 [1995], lvs dismissed 86 NY2d 810 [1995], 87NY2d 891 [1995]). Therefore, we find no reason to disturb theBoard’s decision.Devine, J.P., Clark, Mulvey and Pritzker, JJ., concur.ORDERED that the decision is affirmed, without costs.
