The Full Board, at its meeting held on July 17, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision (MOD) filed on August 22, 2011, and resolved that the Board Panel Memorandum of Decision filed on August 22, 2011, be modified.
The claimant requests review of the decision of the Workers' Compensation Law Judge (WCLJ) filed on May 26, 2010. The carrier has filed a rebuttal.
The issue presented for Mandatory Full Board Review is whether the claimant has a permanent total disability.
The WCLJ amended the case to include a consequential psychiatric disorder and classified the claimant with a permanent partial disability specifying a rate of $90.00 per week (approximately a 40% disability based upon the established average weekly wage of $336.00).
The Board Panel majority modified the WCLJ's decision to classify claimant permanently totally disabled and to make awards from September 16, 2009, forward payable at the total disability rate.
The dissenting Board Panel member would affirm the WCLJ's decision.
In an application for Mandatory Full Board Review filed on September 20, 2011, the carrier asserts that there is insufficient medical evidence to find that claimant is permanently totally disabled, and that the WCLJ was the correct party to determine differences in medical opinion. The carrier argues that as there was sufficient evidence to support the WCLJ's decision to classify the claimant with a permanent partial disabled, the WCLJ's decision should have been affirmed.
In a rebuttal not filed until May 23, 2012, the claimant argues that that the MOD should be sustained, as the record supports a permanent total disability classification.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, a driver, sustained injuries to her back, neck, right shoulder, face, and right thumb when she was rear-ended by a van on June 14, 2004. The case was established for injuries to the claimant's back, neck, right shoulder, and face per Notice of Decision (NOD) filed April 20, 2005. The case was amended to include a right thumb injury by a NOD filed July 29, 2008.
Differing medical opinions were offered with respect to claimant's degree of disability and at a hearing held September 15, 2009; the WCLJ directed the depositions of attending providers Dr. Boudreau and Dr. Snow, and carrier's consultants Dr. Hughes and Dr. De La Chapelle.
Dr. Boudreau testified via deposition on January 8, 2010. The doctor practiced physical medicine and rehabilitation and had treated the claimant since June 16, 2004. He was aware the claimant had a pre-existing back and neck condition from a motor vehicle accident in 2001, but believed the claimant had fully recovered from these injuries at the time of the June 14, 2004, accident. On June 16, 2004, he diagnosed cervical disc syndrome with radiculopathy, right shoulder contusion, and an exacerbations of a lumbar spine and cervical spine condition. He believed the claimant was totally disabled due to stiffness and spasm in the low back. MRI's taken August 4, 2004, revealed herniated discs at C3-4 and C-5-6, as well as L4-5 and L5-S1. He continued to treat the claimant and last saw her on September 11, 2009. At that time he noted slight improvement in her low back, but continued problems with her neck with pain extending into her right hand. He suggested the claimant see a hand surgeon and the claimant's right hand was operated on, but Dr. Boudreau had not reviewed operative reports and was unable to testify regarding the specifics of the surgery. While the claimant's ability to function in daily life had improved, she still had problems lifting, bending, and pushing, and the doctor still assessed a total disability, which he believed was permanent. He did not inquire as to how the claimant was transported or how she spends her day. The claimant did not complain of bowel or sexual dysfunction, did not use a cane last time he saw her, and the doctor agreed that the claimant had "definitely" improved with treatment. Dr. Boudreau testified that he based his total disability assessment upon "guidelines," but did not specify the guidelines to which he was referring.
Dr. Snow, claimant's treating psychologist, testified via deposition on January 7, 2010. He first treated the claimant on December 8, 2008. She complained of low back pain and numbness down her right leg as well as sleep and mood disturbance. She advised the doctor that her pain was "9 out of 10" and that she spent her day watching television. He diagnosed chronic pain syndrome with depression and psychophysiological deficit. He did not believe the claimant could work. He saw the claimant four more times, most recently on July 27, 2009. At that time, the claimant reported improving mood and activity levels and the chronic pain was slowly improving. He believed the claimant was still depressed and needed further treatment. He testified that the claimant did not report appetite disturbance, hallucinations, or delusions. The claimant was able to communicate clearly, demonstrated good judgment and insight, made good eye contact, and was alert. He knew the claimant was separated, but did not know the specifics of her interactions with her children. He was not aware that the claimant occasionally shopped, or visited family and friends. As of July 27, 2009, he believed the claimant had made a moderate improvement, but still could not work. The doctor was unsure if the claimant could work a part time job. Claimant had stopped a coming to schedule appointments with Dr. Snow.
In his July 29, 2009, report, Dr. Hughes, the carrier's neurosurgical consultant, found that claimant had a mild partial disability, and could do light duty work with restrictions of no bending, stooping or carrying greater than 40 pounds. Dr. Hughes testified via deposition on May 5, 2010. He examined the claimant on one occasion, July 29, 2009. He had indicated in his report that claimant's injury occurred on June 14, 2009, but this was an error, and he meant June 14, 2004. He was unsure if he inquired as to the daily activities of the claimant, did not know how she got to the appointment, and did not know whether the claimant suffered any bowel or sexual dysfunction. While the claimant had complained of radicular pain, he did not believe she had this at the time of examination, and he did not believe the claimant had suffered a neurologic injury.
Dr. De La Chapelle, carrier's psychiatric consultant, testified via deposition on March 9, 2010. He had seen the claimant on two occasions, June 18, 2009, and July 23, 2009. On June 18, 2009, he performed a psychiatric evaluation and noted the claimant was well groomed, made good eye contact, was oriented, had a good memory, with a good appetite, but reported she only got two to three hours of sleep each night. He diagnosed depressive disorder, which he believed was causally related to the June 14, 2004, accident, and assessed a moderate disability. He saw the claimant again on July 23, 2009. The claimant reported nervousness in cars, and reported minimal activity around the home, but confirmed that she cooked, shopped, cleaned, did laundry, and visited family and friends. She was well groomed, cooperative, mildly depressed, with good intellectual function. She had a fair appetite and again complained of only two to three hours of sleep nightly. He again diagnosed depressive disorder, but believed it had resolved and the claimant had no further disability. He did not obtain any family history of depression, found the claimant's depression to have resolved because of its mild nature at the July 23, 2009, examination. He believed the claimant could work full time, but agreed that lack of sleep could be a problem with the claimant being employed as a driver.
In a reserved decision the WCLJ amended the case to include a consequential psychiatric disorder and classified the claimant with a permanent partial disability at a $90.00 rate and made awards from September 16, 2009, forward payable at the rate of $90.00 per week. These findings were memorialized in a decision filed May 26, 2010.
In her application filed June 25, 2010, the claimant argues that the record supports classification with a permanent total, as opposed to a permanent partial, disability.
In its rebuttal filed July 16, 2010, the carrier argues the WCLJ's decision should be affirmed.
"It is well settled that the Board is vested with the discretion to assess the credibility of medical witnesses and its resolution of such issues is to be accorded great deference…" (Matter of Peterson v Suffolk County Police Dept., 6 AD3d 823 ; see Matter of Joyce v United Food & Commercial Workers Local 342-50, 307 AD2d 552 )" (Matter of Provenzano v Pepsi Cola Bottling Co., 30 AD3d 930 ).
The New York State Workers' Compensation Board Medical Guidelines of 1996, provide specific criteria which support a finding of a permanent total disability with respect to the back and neck: (1) use of an assistive device to ambulate such as a walker, crutches and/or wheelchair of more than two years duration; (2) the need for assistance to undress or disrobe and the inability to get up to the examination table without assistance; (3) the need for assistance to perform the activities of daily living such as self-care, personal hygiene, and transportation; (4) severe neurological deficit such as marked muscle weakness, paraplegia, and paraparesis, and: (5) disturbance of bladder, bowel, and/or sexual function (see State of New York Workers' Compensation Board Medical Guidelines, June 1996, pgs. 27 & 31 ). A review of the record demonstrates that none of these factors are present in this case.
Dr. De La Chapelle received a history from the claimant that she was capable of shopping, cooking, doing laundry, and visiting friends and family on a limited basis. Dr. Boudreau testified that the claimant was permanently totally disabled, but acknowledged that she walked unassisted, and had not complained of bowel or bladder dysfunction. Moreover, while Dr. Boudreau stated he based his assessment upon "guidelines," he never specified the guidelines to which he was referring.
As to claimant's psychological disability, the WCLJ correctly noted that at the time of the decision classifying claimant with a permanent partial disability, the claimant was not actively treating for any psychological disorder, and Dr. Snow confirmed that she had stopped coming to appointments. A review of the Board's file indicates that claimant has not continued to receive treatment for her psychiatric condition.
Based on a review of the record, the Full Board finds the claimant has a marked permanent partial disability, rather than a permanent total disability.
ACCORDINGLY, the WCLJ decision filed on May 26, 2011, is MODIFIED to find that claimant has a marked permanent partial disability, to make awards from September 16, 2009, to May, 21, 2010, at the rate of $168.00 per week and to direct the carrier to continue payments at the rate of $168.00 per week. The decision is otherwise affirmed. No further action is planned by the Board at this time.