The Full Board, at its meeting on March 20, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on March 18, 2011.
The issue presented for Mandatory Full Board Review is whether the claimant's schedule loss of use (SLU) awards for his right leg and left leg should be increased.
By decision filed December 24, 2009, the Workers' Compensation Law Judge (WCLJ) found that the SLU awards should be increased.
In a Memorandum of Decision (MOD) filed April 15, 2011, the Board Panel majority agreed with the WCLJ.
However, the dissenting Board member would have found there was no change in the claimant's condition and would not have disturbed the SLU awards.
In its application for Mandatory Full Board Review filed on April 15, 2011, the self-insured employer (SIE) argues that there was no change in the claimant's condition, and therefore, the claimant was not entitled to increased SLU awards.
In a rebuttal filed with the Board on May 12, 2011, the claimant argues that the preponderance of the evidence in the record supports the finding made by the WCLJ and the Board Panel majority that there has been a change in the claimant's medical condition sufficient to warrant an increase in the claimant's SLU awards.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, a maintenance technician, sustained a work-related injury on September 30, 2002. Accident, notice and causal relationship were established for an injury to the right knee and amended to include a consequential injury to the left knee. The average weekly wage was set at $855.83.
In 2004, the parties stipulated upon a 12.5% SLU of the claimant's right leg and a 7.5% SLU of the claimant's left leg based on the following medical evidence: 1) the opinion of Dr. Dickerson, the carrier's consulting orthopedist, who found the claimant had a 10% SLU of the right leg and a 7.5% SLU of the left leg; and 2) the opinion of Dr. Lefebvre, the claimant's consulting orthopedist, who found the claimant had a 15% SLU of the right leg and a 7.5% SLU of the left leg. The stipulation was reflected in a notice of decision filed October 27, 2004.
On April 24, 2009, the claimant filed a form RFA-1 (Claimant's Request for Further Action) requesting a reopening of the case based upon an alleged increase in his schedule loss of use. The claimant submitted a medical narrative report from his treating orthopedist, Dr. Maloney, dated April 3, 2009, in support thereof.
Dr. Maloney testified by deposition on November 9, 2009, as follows: that he performed two surgeries, namely, arthroscopy, partial medial meniscectomy and chrondoplasty of the patellofemoral compartment, on the claimant's right knee on January 28, 2003, and an arthroscopy partial medial meniscectomy on the claimant's left knee on July 15, 2003. Per his report dated April 3, 2009, Dr. Maloney opined that the claimant had a current SLU of 15% in each leg. Utilizing the Workers' Compensation Board Medical Guidelines, Dr. Maloney based his opinion on the fact that the claimant required a partial meniscectomy in both knees, and as a result thereof, has range of motion deficit, primarily flexion greater than extension. The claimant's range of motion measurements went from 0 to 125 degrees, which would correlate to a lack of 5 degrees of extension from normal and 10 to 15 degrees of normal flexion. Dr. Maloney testified further that he last examined the claimant on October 16, 2009, and there were no significant changes from his examination of the claimant in April 2009.
On cross-examination, Dr. Maloney testified that per his medical record dated February 23, 2004, he had indicated that the claimant had full range of motion. Dr. Maloney further admitted that he never gave the claimant a permanency determination in 2004 (after the claimant's surgeries). Dr. Maloney admitted that he did not have a copy of the claimant's IME report from 2004. The claimant had some x-rays taken on April 3, 2009. Dr. Maloney testified that while the x-rays exhibited no significant findings, that such findings did not have any impact on the claimant's SLU. Again, he stated that his opinion was based on the surgical procedures and the claimant's range of motion defect.
On re-direct examination, the claimant's attorney asked Dr. Maloney to compare the results of a range of motion test contained in an IME report by Dr. Dickerson dated October 1, 2004. At that time, both the claimant's right knee and left knee had full extension and 140 degrees flexion. Dr. Maloney testified that as compared to Dr. Dickerson's findings, his findings indicated a worsening of the claimant's condition.
On re-cross-examination, Dr. Maloney admitted that he noted no warmth, erythema, atrophy, asymmetry or effusion in either of the claimant's knees when he examined him in April 2009.
By notice of decision filed September 15, 2009, the WCLJ found that the carrier waived the opportunity to submit an up-to-date IME report. By a decision filed December 24, 2009, the WCLJ found that claimant had a schedule loss of use of both legs.
An essential element in any claimant's assertion to reopen a claim is to submit medical evidence indicating that the claimant has a change of condition or in his degree of disability since the closing of the case (Matter of Kellner v Elysee Lingerie Corp., 38 AD2d 980 ). Here, the claimant has adequately met the condition necessary to reopen his claim in that Dr. Maloney's report dated April 3, 2009, clearly indicates that the claimant has had a change of condition since the closing of the case.
In evaluating the medical evidence presented, the Board is not bound to accept the testimony or reports of any one expert, either in whole or in part, but is free to choose those it credits and reject those it does not credit (see Matter of Morrell v Onondaga County, 238 AD2d 805 , lv denied 90 NY2d 808 ; Matter of Wood v Leaseway Transp. Corp., 195 AD2d 622 ). Thus, questions of credibility, reasonableness, and relative weight to be accorded to conflicting evidence are questions of fact that come within the exclusive province of the Board (see Matter of Berkley v Irving Trust Co., 15 AD3d 750 ).
Here, Dr. Maloney provided a rational and valid basis for his opinion including objective findings (i.e., the decrease in the claimant's range of motion), and an application of the NY Workers' Compensation Board, Medical Guidelines (1996) with respect to knee injuries. Moreover, the carrier waived its opportunity to present up-to-date medical evidence into the record, thereby rendering the opinion of Dr. Maloney as to the claimant's present medical condition uncontroverted.
Accordingly, the preponderance of the evidence in the record supports a finding that there has been a change in the claimant's medical condition sufficient to warrant an increase in the claimant's SLU awards.
In addition, there is nothing to prevent the parties from revisiting a stipulation entered pursuant to 12 NYCRR 300.5(b)(1) if, as here, the circumstances so warrant. Once the WCLJ approves a stipulation entered pursuant to 12 NYCRR 300.5(b)(1), the terms of that stipulation become a part of the WCLJ's decision (12 NYCRR 300.5[b]). The stipulation thereby becomes subject to the provisions of WCL § 22, which addresses the Board's authority to modify awards, decisions, or orders upon discovery of an erroneous wage rate; WCL § 23 and 12 NYCRR 300.13, which discuss applications for Board review of WCLJ decisions; and WCL § 123, which provides for the Board's continuing jurisdiction (id.).
Accordingly, the WCLJ decision filed December 24, 2009 is AFFIRMED. No further action is planned by the Board at this time.