The Full Board, at its meeting on May 15, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel memorandum of decision (MOD) filed August 2, 2011.
The issue presented for Mandatory Full Board Review is whether an increase in the claimant's schedule loss of use of the right hand is supported by the evidence of record.
In a reserved decision filed on December 7, 2010, the Workers' Compensation Law Judge (WCLJ) determined that the claimant now has a 47.5% schedule loss of use of the right hand, inclusive of the 22.188% schedule loss of use of right hand previously awarded.
The Board Panel majority affirmed the WCLJ's decision. The Board Panel majority also denied SFCC's request for a referral to an Impartial Specialist, finding no basis for such a referral as the underlying WCLJ decision is supported by substantial evidence.
The dissenting Board Panel member found that the claimant should not be permitted to re-litigate the prior schedule loss of use finding, and that a 5% increase in the claimant's schedule loss of use of the right hand is appropriate.
In its application for Mandatory Full Board Review, the Special Funds Conservation Committee (SFCC) asserts that there has been no demonstration by the claimant of a real change in condition since the claimant was awarded a 22.188% schedule loss of use of the right hand by stipulation, and that at most the claimant is entitled to a 5% increase in his schedule loss of use of the right hand. In the alternative, SFCC argues that the case should be referred to an Impartial Specialist on the issue of claimant's schedule loss of use of the right hand.
In rebuttal, the claimant contends that the decision reached by the WCLJ should be affirmed in its entirety.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This case is established for work related injuries to the claimant's left and right hands that occurred on September 12, 2002, while he was employed by Universal Forrest Products.
In a C-4 (Attending Doctor's Report and Carrier/Employer Billing Form) filed on December 5, 2003, the claimant's treating physician, Dr. Bergeron opined that the claimant has a 40% schedule loss of use of the left hand and a 42.5% schedule loss of use of the right hand.
In an IME-4 (Practitioner's Report of Independent Medical Examination) filed with the Board on April 9, 2004, the carrier's consultant Dr. Jones, opined that the claimant has a 0% schedule loss of use of the left hand and a 12.5% schedule loss of use of the right hand.
In a C-300.5 (Stipulation) filed with the Board on September 28, 2004, the parties stipulated to a 22.1875% schedule loss of use of the right hand equal to 54.1375 weeks of benefits, and a 15% schedule loss of use of the left hand equal to 36.6 weeks of benefits, for a total schedule loss of use equal to 90.7375 weeks of benefits payable from October 24, 2002, to May 4, 2003, at the rate of $400.00, balance at $400.00 partial disability, no protracted healing period, modify claimant's average weekly wage (AWW) to $600.00, treatment authorized, fee of $2,600.00 to claimant's attorney, and no further action planned. The C-300.5 is signed by the claimant, claimant's attorney, a representative of the carrier (Sentry), and the WCLJ.
In an amended decision filed on October 13, 2004, the WCLJ made findings and awards consistent with the stipulation.
In an EC-4NARR (Doctor's Narrative Report) filed on November 5, 2009, the claimant's treating physician, Dr. DiGiovanni, opined that the claimant now has a 47.5% schedule loss of use of the right hand based on an x-ray taken at his office that "reveals advanced right radiocarpal arthritis which has advanced considerably since a 2002 x-ray."
The carrier (Sentry) filed an RFA-2 (Carrier's/Employer's Request for Further Action) on March 4, 2010, requesting a hearing on the issue of WCL § 25-a.
In a decision filed on April 20, 2010, the WCLJ found WCL § 25-a applicable, discharged the carrier (Sentry) from liability, and found SFCC liable for this claim effective September 12, 2009.
In an IME-4 filed with the Board on June 25, 2010, SFCC's consultant Dr. Benson opined that the claimant has a 17.5% schedule loss of use of the left and a 17.5% schedule loss of use of the right hand.
In a decision filed on July 9, 2010, the parties were directed to depose the claimant's Dr. DiGiovanni and SFCC's Dr. Benson, with deposition transcripts and memoranda of law to be filed by October 6, 2010.
Dr. DiGiovanni was deposed on September 16, 2010, and testified that claimant's range of motion in the right wrist was significantly limited, that his loss of extension was 15%, that his loss of flexion was 15%, and that his loss of radial and ulnar deviation was 17.5%. He reviewed a bilateral wrist x-ray from 2002 that showed a non-displaced fracture of the body of the navicular and arthritis of the basal joints of the bilateral thumbs, and compared it to an x-ray taken at the September 8, 2009, office visit, that revealed advanced radiocarpal arthritis that had advanced considerably since the 2002 x-ray was taken. Dr. DiGiovanni could not recall if the claimant previously had surgery, and opined that the claimant is presently at maximum medical improvement. On cross-examination, Dr. DiGiovanni acknowledged that Dr. Bergeron had opined that the claimant had a 42.5% schedule loss of use of the right hand and that his schedule loss of use finding was 5% above what Dr. Bergeron had found. Dr. DiGiovanni testified that the claimant's condition was permanent, that the claimant has reached maximum medical improvement, and that his findings were based on the Board's Medical Guidelines.
The parties arranged to depose SFCC's consultant, Dr. Benson by telephone on September 29, 2010, but the deposition transcript indicates that the parties were unable to reach him.
In a decision filed on October 18, 2010, the deadline for submission of deposition transcripts was extended to November 8, 2010, to insure Dr. Benson's availability.
The telephonic deposition of Dr. Benson was re-scheduled for November 5, 2010, but the deposition transcript on that date reveals that the parties were again unable to depose him.
In a reserved decision filed on December 7, 2010, the WCLJ determined that the claimant now has a 47.5% schedule loss of use of the right hand, inclusive of the 22.188% schedule loss of use of right hand previously awarded based on the opinion of Dr. DiGiovanni.
Pursuant to 12 NYCRR 300.5, "[p]arties to any claim before the Board may stipulate to uncontested facts or proposed findings. Such stipulation shall be in writing and shall be signed by all parties so stipulating…" (12 NYCRR 300.5[b]). Such a stipulation, if it meets all the requirements set forth in this section, shall be binding upon the parties (see 12 NYCRR 300.5 [b] ; and Matter of Marino v K.L.M. Royal Dutch Airlines, 194 AD2d 818 , leave to appeal denied, 82 NY2d 661 ).
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 Workers' Compensation Law (WCL) § 22, which addresses the Board's authority to modify awards, decisions, or orders upon a change in condition or 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 over each case, and gives the Board the authority to modify or change former findings, awards, decision, or orders as in its opinion may be just.
Board Rule 300.14 provides that applications for a reopening may be made (1) if evidence is now available that was not available for presentation at the time of the original hearing, (2) if there was a change in the claimant's condition, or (3) if it would be in the interest of justice. A "change in condition" must be in the form of a verified medical report prepared as a result of an examination "held after the expiration of a substantial period subsequent to the closing of the case." It is not sufficient that the medical report indicate continued disability and treatment (see Matter of Pucser v Allegheny Ludlum Steel Corp., 45 AD2d 798 ).
The Full Board finds, upon review of the evidence of record, that the instant case was properly reopened. The parties previously stipulated to a 22.1875% schedule loss of use of the right hand, and neither party filed a timely appeal from the decision which incorporated the stipulation. As such, the claimant was required to request a re-opening of the case in accordance with Board Rule 300.14, or make a motion for modification of the award pursuant to WCL § 22, in order to modify the findings reached by the WCLJ in his October 13, 2004, amended decision. In either case, the claimant was required to demonstrate a change in condition based on medical evidence. While the claimant did not file a C-27 (Medical Proof of Change in Condition in Support of Application for Reopening of Claim) with the Board, Dr. DiGiovanni's November 5, 2009, medical report and subsequent testimony indicating that radiocarpal arthritis has advanced considerably since 2002, supports a finding that the claimant's right hand condition has materially changed since the case was closed in 2004.
The Full Board further finds, upon review of the evidence of record, that the claimant presently has a 47.5% schedule loss of use of the right hand, inclusive of the 22.188% schedule loss of use previously awarded. In light of the failure of SFCC's consultant Dr. Benson to appear and testify, the Board Panel majority appropriately credited Dr. DiGiovanni's medical opinion, and concluded that the claimant's schedule loss of use of the right hand is presently 47.5%. Based on Dr. DiGiovanni's credible and uncontested medical opinion, a referral of this case to an Impartial Specialist is not required.
SFCC's argument that an increase in the claimant's schedule loss of use of the right hand should be limited to 5%, as the baseline for any increase should be the 2004 opinion of the claimant's treating physician Dr. Bergeron that claimant's schedule loss of use is 42.5%, is also without merit. As noted above, the Board's acceptance of the parties' stipulation requires a finding that the baseline for any increase in the claimant's schedule loss of use of the right hand is the 22.188% found in the WCLJ's October 13, 2004, amended decision. The 2003 opinion of the claimant's Dr. Bergeron, which was not accepted by the parties and was not subsequently adopted by the WCLJ, has no bearing on the issue of whether an increase in the claimant's present schedule loss of use of the right hand is appropriate.
Accordingly, the WCLJ reserved decision filed on December 7, 2010, is AFFIRMED. No further action is planned by the Board at this time.