## Facts

- Joseph Barsuk, an employee of Joseph Barsuk, Inc., suffered a severe workplace injury when his right arm was nearly amputated while he performed maintenance on a scrap-metal shearing machine.
- Medical evidence assessed Barsuk as having approximately a 90% loss of use of his right arm.
- A vocational rehabilitation expert opined that Barsuk was not a viable candidate for employment in any capacity, citing the arm impairment along with his age, limited education, and difficulty focusing.
- A Workers’ Compensation Law Judge awarded benefits as a scheduled loss of use of the arm (90%) and rejected Barsuk’s claim that he was totally industrially disabled.
- The Workers’ Compensation Board affirmed the scheduled-loss classification, and Barsuk appealed.

## Issues

1. Whether substantial evidence supported the Board’s determination to award a 90% scheduled loss of use of the right arm rather than finding total industrial disability.

## Decision

- The Appellate Division affirmed the Workers’ Compensation Board’s decision.
- The court held that substantial evidence supported classification of Barsuk’s disability as a 90% scheduled loss of use of the right arm.
- The court declined to disturb the Board’s rejection of total industrial disability despite vocational testimony of unemployability.

## Legal Principles

- Whether a claimant is totally industrially disabled is a factual determination for the Workers’ Compensation Board.
- On judicial review, the Board’s disability and classification determinations are upheld if supported by substantial evidence.
- The Board may resolve conflicts in medical and vocational proof and may accept or reject expert opinions, in whole or in part.
- A serious employment impact from a scheduled member injury does not, by itself, require a total industrial disability classification when the record permits a scheduled-loss finding.

## Conclusion

The court upheld the Board’s award of scheduled benefits for a 90% loss of use of the right arm, finding substantial evidence for the Board’s refusal to classify the claimant as totally industrially disabled notwithstanding vocational testimony suggesting he was effectively unemployable.


In re Barsuk v. Joseph Barsuk, Inc., 24 A.D.3d 1118, 807 N.Y.S.2d 195 (N.Y. App. Div. 3d Dep’t 2005)