Case # 00801064
Date of Accident: 12/02/2007
District Office: Peekskill
Employer: NYC Housing Authority
Carrier: NYC Housing Authority
Carrier ID No.: W843254
Carrier Case No.: NHA0000006398
Date of Filing of Decision: 04/20/2012
Claimant's Attorney: Joseph A. Romano Law Offices
Panel: Robert E. Beloten

The Full Board, at its meeting held on March 20, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on March 15, 2011.

ISSUE

The issue presented for Mandatory Full Board Review is the claimant's degree of disability subsequent to February 18, 2009.

In a reserved decision filed on February 26, 2010, the Worker's Compensation Law Judge (WCLJ) found the claimant had a temporary mild degree of disability subsequent to February 18, 2009, and directed awards from February 18, 2009, to February 19, 2010, and continuing at the rate of $211.59 per week.

The Board Panel majority affirmed the WCLJ's findings.

The dissenting Board Panel member found the claimant had a total disability after February 18, 2009.

In his application for Mandatory Full Board Review, the claimant argues that the record supports a finding that he had a total disability after February 18, 2009.

In rebuttal, the Self-Insured Employer (SIE) contends the Board Panel majority's decision should be affirmed.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This case is established for a back injury claimant sustained on December 2, 2007, while lifting bags of road salt. The average weekly wage is set at $1,269.51. Awards for lost time were originally directed from December 5, 2007, to April 7, 2008, and from July 28, 2008, to February 18, 2009, at a temporary total rate of $500.00 per week, payable as reimbursement to the self-insured employer (SIE).

Claimant underwent a lumbosacral MRI on February 26, 2008, which revealed a disc bulge without stenosis at L1-L2, a disc bulge at L3-L4 with stenosis, and disc herniations with stenosis at L2-L3, L4-L5 and L5-S1.

The SIE had the claimant examined by its consultant, Dr. Seslowe, on February 18, 2009. During the examination, the claimant stated he has had multiple injuries to his back while working, though he is not aware of any dates of injury. The claimant further stated that he has always had intermittent low back pain, which worsened after his December 2, 2007, work accident. The claimant advised he had a MRI performed in 2005 and was told he had a herniated disc. After reviewing several medical records, including diagnostic testing performed after the December 2, 2007, work accident, Dr. Seslowe found the claimant has a chronic lumbosacral sprain, the December 2, 2007, work accident was an exacerbation of the claimant's prior injuries, and that the claimant has a mild partial disability.

The claimant's orthopedist, Dr. Palmeri, first examined the claimant on June 17, 2008, received a history of the December 2, 2007, work injury, and learned that the claimant has a past medical history significant for a prior lower back injury at work in 2005 while employed for the SIE. After examining the claimant on July 29, 2008, Dr. Palmeri found that the claimant has on overall moderate degree of disability based upon a moderate restriction in range of motion in flexion and extension, moderate paralumbar spinal tenderness with areas of spasm throughout the lumbar spine, pain with lateral extension, bending, and turning, tenderness over the sacroiliac joints, and a positive straight leg raising examination on the left. Dr. Palmeri continued to find the claimant moderately disabled, and based upon his December 17, 2008, examination, found the claimant has a permanent partial moderate disability for the reasons listed in his July 29, 2008, report.

The claimant's chiropractor, Dr. Pasqua, began treating the claimant on December 14, 2007, where he found the claimant totally disabled. Dr. Pasqua continued to find the claimant totally disabled from all employment in his subsequent examinations.

The claimant's neurologist, Dr. Randa, first examined the claimant on July 8, 2008, where he received a history that the claimant had a stable occupational back condition related to his employment for the SIE until the claimant suffered from a severe exacerbation on December 2, 2007. Dr. Randa's examination on that date found severe bilateral paravertebral spasm in the cervical and lumbosacral regions with severely diminished range of motion, discomfort at the base of the neck, and straight leg raising severely diminished bilaterally. Based upon the claimant's causally related lumbosacral, musculoskeletal and radicular pain syndrome, Dr. Randa found the claimant has a causally related total degree of disability. Dr. Randa examined the claimant on two further occasions, July 22, 2008, and November 24, 2008, at which times Dr. Randa continued to find the claimant totally disabled.

Although Drs. Seslowe and Palmeri indicated the claimant had a prior occupational injury involving the back, the Board's records indicate the claimant did not file a claim for a prior back injury. However, the record in this case contains the claimant's MRI report from June 8, 2005, which revealed a left posterior protrusion, spinal stenosis and bilateral foraminal stenosis at L4-5, as well as bulging discs at L2-3 and L3-4, with stenosis.

At a hearing held on April 29, 2009, the WCLJ directed awards from February 18, 2009, to April 29, 2009, at a tentative mild disability rate of $211.59 per week, reimburse SIE, and marked the file no further action.

The claimant filed a RFA-1 on July 24, 2009, and attached a June 12, 2009, letter indicating the claimant's application for disability retirement was approved with a retirement date of May 27, 2009. Based upon this filing, the Board scheduled a hearing on August 26, 2009, on the question of voluntary withdrawal from the labor market.

On August 26, 2009, the WCLJ directed awards from April 29, 2009, to May 29, 2009, at a tentative mild disability rate of $211.59 per week, reimburse SIE and from May 29, 2009, to August 27, 2009, and continuing at a tentative mild disability rate of $211.59 per week. Based upon the difference of medical opinions, the WCLJ directed the parties take deposition testimony of Drs. Palmeri, Pasqua, and Seslowe with their deposition transcripts to be filed by October 26, 2009.

Dr. Seslowe provided deposition testimony on October 5, 2009. He testified that he examined the claimant on the SIE's behalf on February 18, 2009. During his examination, Dr. Seslowe found the claimant had a mild limp, but no spasms or rigidity. The range of motion test found the claimant limited his forward flexion to 60 degrees, limited his lateral bend bilaterally to 25 degrees, and limited his extension to 25 degrees. The claimant had a positive straight leg raising bilaterally at 60 degrees. Based upon this examination, Dr. Seslowe opined the claimant has a mild degree of disability with an ability to work with restrictions of no lifting above 30 pounds and no frequent bending or twisting.

Upon cross-examination, Dr. Seslowe stated the claimant's February 2008 lumbar MRI report listed multiple herniations. Dr. Seslowe conceded that the claimant should consider epidural steroid injections to relieve his pain. Dr. Seslowe testified that the claimant certainly had preexisting problems from his prior injury and he could not tell what caused the herniations seen in the 2008 MRI report. If the herniations found in the 2008 MRI report resulted from the December 2, 2007, work accident, then the claimant would have a causally related moderate degree of disability.

Dr. Pasqua provided deposition testimony on October 15, 2009. He testified that he first examined the claimant on December 14, 2007. At that time, the claimant exhibited range of motion restrictions where flexion was limited to 40 degrees, extension was limited to 50 degrees, left lateral flexion was limited to 10 degrees and right lateral flexion was limited to 15 degrees. Based upon this examination, Dr. Pasqua found that the claimant was totally disabled. Dr. Pasqua continues to treat the claimant with his last examination taking place on October 6, 2009. At that time, flexion was limited to 55 degrees, extension limited to 20 degrees, left lateral flexion limited to 15 degrees and right lateral flexion limited to 20 degrees. The claimant had a positive straight leg raising bilaterally, mild spasms and tenderness in the lumbosacral region and showed an inability to perform a toe walk. Based upon this final examination, the claimant remained totally disabled. The claimant could not stand nor sit for more than 20 minutes at a time and the claimant could not push, pull, carry or lift anything greater than 10 pounds.

Upon cross-examination, Dr. Pasqua stated a lumbar MRI performed on February 26, 2008, revealed herniations at L2-3, L4-5, and L5-S1 with disc bulges at L1-2 and L3-4. An EMG test performed on September 28, 2008, indicated left L5-S1 radiculopathy. Dr. Pasqua was not aware if the claimant had any prior injuries to his back or whether the claimant had any prior treatment related to a back condition.

At the following hearing held on November 4, 2009, the SIE withdrew its claim of voluntary removal and the WCLJ directed the parties to complete the deposition testimony and submit the transcripts no later than January 15, 2010. The WCLJ directed continuing awards at the tentative mild disability rate of $211.59 per week and marked the case for a reserved decision on the issue of further causally related disability subsequent to February 18, 2009.

Dr. Palmeri's deposition was scheduled to take place on November 6, 2009. However, Dr. Palmeri cancelled the deposition and the parties agreed to attempt to reschedule his deposition testimony. Dr. Palmeri's deposition was not rescheduled and he did not testify in this case.

On February 26, 2010, the WCLJ issued a reserved decision where he found, based upon a review of Dr. Pasqua's and Dr. Seslowe's testimony, that the claimant has had a temporary mild degree of disability beginning on February 18, 2009, and directed awards from February 18, 2009, to February 19, 2010, and continuing at a temporary partial disability rate of $211.59 per week. In finding the claimant mildly disabled, the WCLJ found Dr. Pasqua less than credible because he was not aware of any prior back condition and the restrictions listed by Dr. Pasqua do not support a finding of a total disability. The WCLJ also directed an attorneys' fee of $75.00.

LEGAL ANALYSIS

Degree of Disability

The Board has broad authority to resolve factual issues based on the credibility of witnesses and may reject an expert's opinion where the Board finds that the physician's testimony does not credibly support his opinion (Matter of Albert v Miracle Makers of Bedford Stuyvesant HFDC, Inc., 13 AD3d 925 [2004]).

Here, Dr. Seslowe testified that while he was aware of the claimant's prior back disability, he could not be sure whether claimant's herniations were the result of his December 2, 2007, work accident until he had a chance to review the claimant's treatment records, including his prior 2005 lumbar MRI report. In addition, Dr. Seslowe conceded that if the herniations seen on the 2008 lumbar MRI report were caused by the December 2, 2007, work accident, then he would find the claimant had a causally related moderate degree of disability.

Claimant's 2005 lumbar MRI report indicated the claimant had left posterior protrusion, spinal stenosis and bilateral foraminal stenosis at L4-5, as well as bulging discs at L2-3 and L3-4, with stenosis. However, the 2008 lumbar MRI report revealed a disc bulge without stenosis at L1-L2, a disc bulge at L3-L4 with stenosis, and disc herniations with stenosis at L2-L3, L4-L5 and L5-S1. A comparison of the 2005 and 2008 MRI reports supports the conclusion that the claimant's December 2, 2007, work accident caused the additional objective findings reflected in the 2008 MRI report, and undermines Dr. Seslowe's conclusion that the claimant had only a mild degree of causally related disability.

Dr. Pasqua's conclusion that the claimant has been totally disabled since February 18, 2009, is not supported by his objective findings. Dr. Pasqua's examinations revealed that while the claimant had range of motion restrictions, they were moderately diminished, not severely so. Last, based upon the claimant's last examination of October 6, 2009, Dr. Pasqua listed physical restrictions which would allow the claimant to work a light-duty job. Based upon the foregoing, Dr. Pasqua's opinion that the claimant is totally disabled is not supported by his physical findings and restrictions placed upon the claimant.

Based on a review of the medical evidence, which includes the deposition testimony and medical records, the Full Board finds the claimant had a moderate degree of disability subsequent to February 18, 2009.

Period of Awards

In this decision, the WCLJ directed awards from February 18, 2009, to February 19, 2010, and continuing at the mild disability rate of $211.59 per week. However, a review of the prior decisions issued in this case indicates that awards from February 18, 2009, to May 29, 2009, were made reimburse SIE.

Therefore, based upon the finding that the claimant has a moderate degree of disability subsequent to February 18, 2009, awards are directed from February 18, 2009, to May 29, 2009, at a temporary partial disability rate of $423.17 per week, reimburse SIE and from May 29, 2009, to February 19, 2010, and continuing at a temporary partial disability rate of $423.17 per week.

Attorney's Fee

In the original application for administrative review, the claimant's attorneys requested an attorneys' fee of $3,500.00 and submitted a fee application for this amount. However, upon submitting an application for Mandatory Full Board Review, the claimant's attorneys failed to request an attorneys' fee. Although a request for an attorneys' fee was not made in the application for Mandatory Full Board Review, the Full Board should consider the attorneys' request and fee application submitted in the application for administrative review.

A review of the fee application reveals that the claimant's attorneys failed to indicate the prior fees awarded and failed to detail the time spent on this case. Additionally, the fee application states that the claimant's attorneys negotiated a favorable settlement via stipulation; however, the record does not contain any signed stipulations.

Based upon the foregoing, the SIE is directed to withhold $1,000.00 pending the submission and review by the Board of a new fee application by claimant's attorneys.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on February 26, 2010, is MODIFIED to find the claimant to have a temporary moderate partial disability subsequent to February 18, 2009, and awards be modified as follows: February 18, 2009, to May 29, 2009, at a temporary partial rate of $423.17 per week, reimburse SIE, and from May 29, 2009, to February 19, 2010, and continuing at a temporary partial rate of $423.17 per week. In addition, the SIE should withhold $1,000.00 pending submission of a new fee application by claimant's attorneys. The balance of the decision shall remain in effect. No further action is planned by the Board at this time.