The Full Board, at its meeting held on June 19, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on September 29, 2011.
The issue presented for Mandatory Full Board Review is whether the claimant suffers from a 25% schedule loss of use of the left hand.
The Workers' Compensation Law Judge (WCLJ) found that the claimant suffers from a 25% schedule loss of use of the left hand, because of loss of grip strength and power.
The Board Panel majority declined to review the WCLJ's decision, finding that the carrier could not raise the issue of the proper schedule loss of use because it failed to appear at the December 29, 2010, hearing. The Board Panel further found that the carrier waived its right to cross-examine the claimant's treating physician because the carrier failed to appear at the hearing.
The dissenting Board Panel member found that the WCLJ's decision should be rescinded, and the claimant awarded a 40% schedule loss of use of the left small finger.
In the carrier's application for Mandatory Full Board Review, it argues that it raised the issue of the proper schedule loss of use by filing the opinion of its consultant, Dr. Carr, and therefore the Board Panel should have considered its application for administrative review. The claimant, who is pro se, did not file a rebuttal.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, an assembler, suffered a fracture of her left small finger on August 5, 2009. The claim was established in an Administrative Decision filed January 15, 2010.
The claimant's treating physician, Dr. Harley, examined the claimant on September 1, 2010, and opined that the claimant had reached maximum medical improvement. Dr. Harley noted that the claimant was one year post open reduction/internal fixation of a proximal phalanx fracture. Upon examination, the finger was stiff and the claimant did not have full motion or grip strength. She exhibited MP joint range of motion from 0 to 85 degrees, PIP joint range of motion from 35 to 85 degrees, and DIP range of motion from 0 to 30 degrees. Dr. Harley observed that the claimant was unable to make a full fist. He opined that the claimant suffers from a 33% schedule loss of use of the left fourth finger, but "[b]ecause of the weakness in loading, has about 25% SLU hand."
The carrier's consultant, Dr. Carr, examined the claimant on November 3, 2010. The claimant complained of occasional pain along the ulnar side of the finger, and she could not bring her finger into a full fist. Upon examination, the claimant exhibited a malrotation deformity and stiffness at the PIP joint, with MP joint range of motion from 10 degrees hyperextension to 90 degrees flexion, PIP joint range of motion from 30 to 80 degrees, and DIP range of motion from 0 to 60 degrees. Dr. Carr stated that he believed a finger schedule loss of use was more appropriate than a hand schedule loss of use because the claimant sustained only a finger injury. Dr. Carr opined that the claimant suffers from a 40% schedule loss of use of the finger.
A hearing regarding permanency was held in this matter on December 29, 2010. The carrier failed to appear, and the WCLJ awarded the claimant a 25% schedule loss of use of the left hand. The WCLJ's findings were memorialized in a Notice of Decision filed January 3, 2011.
The carrier requested administrative review.
Preservation of Issue for Appeal
A party's application for administrative review "must make references to the record below or such part thereof as is relevant to the issues and grounds raised in such application and indicate when and where they were raised before the [WCLJ]" (12 NYCRR 300.13[a]). "The board panel may deny review…of any issues raised in the application that were not raised before the [WCLJ]" (12 NYCRR 300.13(e)(1)(iii)).
In the present case, the December 29, 2010, hearing was scheduled to address the issue of permanency. At the time of the hearing, there was conflicting medical evidence in the record on that issue (cf. Matter of Brown v Orange County Home & Infirmary, 283 AD2d 797 ). Thus, the issue of permanency, as the subject of the hearing, was raised, despite the carrier's failure to appear. Therefore, the carrier's application for administrative review, which addressed only the WCLJ's findings regarding schedule loss of use, should have been considered.
Schedule Loss of Use
The Board's 1996 Medical Guidelines set forth the parameters for evaluating functional impairments. With respect to the fingers, the Guidelines provide for "an amount added to [an SLU] to allow for weakness of grasp or major loss of function" when multiple digits are affected. No addition to the SLU is provided for a loss of grasp when only one digit is affected.
In the present case, Dr. Harley's opinion regarding the claimant's schedule loss of use was not in accordance with the Guidelines. The claim has not been established for a hand injury, and, since only one finger was affected, the loading provisions do not apply. Thus, the claimant is only entitled to a schedule loss of use for the left small finger.
Dr. Harley opined that the claimant suffers from a 33% schedule loss of use of the left small finger, and the carrier's consultant, Dr. Carr, opined that the claimant suffers from a 40% schedule loss of use of the left small finger. Both doctor's clinical findings were essentially the same, and show that the claimant has a moderate limitation of range of motion of the left small finger. However, Dr. Carr's opinion that the claimant suffers from a 40% schedule loss of use more closely adheres to the Guidelines in accounting for the claimant's restricted range of motion in the left small finger.
Therefore, the preponderance of the evidence in the record supports a finding that the claimant suffers from a 40% schedule loss of use of the left small finger.
WCL § 114-a(3) Assessment
WCL § 114-a(3)(i) provides:
If the board or any court having jurisdiction over proceedings in respect of any claim for compensation determines that the proceedings in respect of such claim, including any appeals, have been instituted or continued without reasonable ground  the cost of such proceedings shall be assessed against the party who has so instituted or continued the proceedings, which shall be payable to the board for administrative expenses pursuant to section one hundred fifty-one of this chapter;
Here, the carrier failed to appear at the hearing on December 29, 2010, and later sought administrative review of the decision resulting from that hearing. Had the carrier attended the hearing, a resolution of the issue of the proper schedule loss of use award might have been resolved in a manner that made an application for administrative review unnecessary, thereby delaying the resolution of this claim. Based on the carrier's failure to appear at that December 29, 2010, hearing, a penalty is being assessed against the carrier in the amount of $500 pursuant to WCL § 114-a(3)(i).
ACCORDINGLY, the WCLJ decision filed on January 3, 2011, is modified to award the claimant a 40% schedule loss of use of the right little finger. Pursuant to WCL § 114-a(3)(i), the carrier is assessed a penalty in the amount of $500, payable to the Board.