Prouty v. Monroe Contractors Equipment, Inc.

178 A.D.2d 698, 577 N.Y.S.2d 161, 1991 N.Y. App. Div. LEXIS 15971

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 5, 1991
• Status: Published

Opinion

— Appeal from a decision of the Workers’ Compensation Board, filed June 18, 1990, which ruled that claimant has a total industrial disability and awarded workers’ compensation benefits.

The employer contends that while claimant may have been permanently partially disabled, he could return to gainful employment and therefore the conclusion by the Workers’ Compensation Board that claimant’s injuries rendered him totally industrially disabled was in error. We disagree. As the Board noted, claimant’s work history involved manual labor only, his education was limited and the occupations surveyed for him required either a high school education or job training. On this record there was a substantial basis to support the finding that these factors, coupled with claimant’s injuries, rendered him "virtually unemployable” and, therefore, that he was totally industrially disabled (see, Matter of Kowalchyk v Lupe Constr. Co., 151 AD2d 927; Matter of Coluccio v Aenco, Inc., 147 AD2d 887). The employer’s contentions to the contrary mainly involve questions of credibility for the Board to resolve (see, Matter of McCabe v Peconic Ambulance & Supplies, 101 AD2d 679) and this includes the authority to selectively adopt portions of a medical expert’s testimony (see, Matter of Lalla v Astoria Air Conditioning, 156 AD2d 808). The employer’s remaining contentions have been considered and rejected as lacking in merit.

Casey, J. P., Weiss, Levine, Mercure and Crew III, JJ., concur. Ordered that the decision is affirmed, without costs.