Case # 80804924
Date of Accident: 05/02/2008
District Office: Buffalo
Employer: NYS Division of Parole
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 62856927-085
Date of Filing of Decision: 12/05/2012
Claimant's Attorney: Hurwitz & DiMatteo
Panel: Robert E. Beloten

The Full Board, at its meeting on October 16, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on December 8, 2011.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant has a permanent total disability.

In a decision filed on June 11, 2010, the Workers' Compensation Law Judge (WCLJ) classified the claimant with a permanent total disability.

The Board Panel majority found that the claimant is totally disabled.

The dissenting Board Panel member would find that the claimant has a permanent partial disability rather than a permanent total disability.

In its application for Mandatory Full Board Review filed on January 6, 2012, the State Insurance Fund (SIF) argues the claimant should be classified as permanently partially disabled to a marked degree based on the credible medical evidence.

In a rebuttal filed on February 2, 2012, the claimant asserts the evidence bears that he is permanently totally disabled.

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

FACTS

The claimant, then a forty-nine year old parole officer, was injured on May 2, 2008, when he was involved in a motor vehicle accident while working. He sustained established injuries to his low back and neck. The claimant's average weekly wage was set at $1,659.52 and various awards have been made. The case was continued on the issue of degree of disability.

The claimant testified on March 18, 2010, that as of the date of his work accident, he had been a parole officer for ten years. He had spinal fusion surgery on his low back following his work accident. The surgery relieved pain in the left leg but he began experiencing right leg pain immediately after the surgery. Claimant testified that as a result of this surgery, he continued to take significant pain medication including Neurontin, Oxycodone and Valium. The claimant indicated that when he tried to increase walking to lose some weight that he felt a burning sensation in right leg and it swelled up, resulting in his doctor prescribing a steroid pack. The claimant testified that he was required to use a cane on occasion, that he cannot drive when he uses the pain medication, especially Valium, and that when he does not use the medication he is in too much pain. In addition, the claimant indicated that his girlfriend lives with him and assists him with daily living activities with which he has difficulty, including tying his shoes and pulling up his socks. The claimant has some bowel difficulties and experiences sexual dysfunction, both on and off the medication. The claimant can negotiate three or four stairs at a time. Prior to the accident, the claimant was able to play golf, softball, and bowl. He is no longer able to do any of these activities. The claimant has been employed in the field of law enforcement for the past twenty-five years. Prior to becoming a parole officer, the claimant was a physical education teacher. The claimant has a bachelor's degree in physical education. On cross-examination, the claimant indicated he took on-line courses to qualify him for parole academy. On re-direct, the claimant clarified that these courses were in counseling and that he did not know whether he got a degree for taking the courses as he did so solely to qualify for the parole officer position. The claimant also indicated that he was able to drive, could take care of his personal hygiene with assistance, and can partially shower. He is unable to do most household chores, such as laundry, cleaning dishes, and taking out the garbage. He is able to grocery shop but cannot bend down to reach items on lower shelves.

Dr. Simmons, the claimant's treating physician, testified that he first saw the claimant in 2006 in connection with a prior injury involving the claimant's back. Thereafter, Dr. Simmons saw the claimant after his 2008 work accident. Dr. Simmons performed back surgery on the claimant in January of 2009. The surgery involved a laminectomy and discectomy at L4-5 and L5-6, along with spinal instrumentation and fusion from L4-S1. The doctor testified that he did not think there was any regular job that the claimant could perform eight hours per day, five days per week or that he was a candidate for VESID services. He indicated that the claimant has difficulty with all activities of daily living, in general. Specifically, he has difficulty with sitting for any significant period of time, more than twenty minutes or so, standing for more than about ten minutes is difficult, and any bending at all is very restricted and limited. He noted that the claimant also has difficulty with personal care, such as getting shoes and socks on, and getting up from a toilet. On cross-examination, Dr. Simmons "supposed" that the claimant might be able to perform part time work in some capacity as a counselor, if he was able to function adequately. Dr. Simmons referenced the Board's 2006 Medical Guidelines with total medical disability and stated that claimant needs assistance with certain activities of daily living; he has some permanent neurological deficit; he has some sexual dysfunction; and he uses an assistive device at times. Dr. Simmons conceded, however, that if the claimant could change positions totally as needed that he would be able to work in some capacity. (Depo. Transcript, 3/19/10, p. 17). However, Dr. Simmons also commented on the claimant's level of medication and the negative impact it would have on the claimant's ability to be a normal productive worker.

Dr. McGlowan, SIF's consultant, examined the claimant on April 14, 2009, July 14, 2009, and October 14, 2009. In his report relative to the April 14, 2009 examination, Dr. McGlowan indicated that the claimant has a "total partial disability" and that "he cannot bend at the waist, lift more than 7 pounds, sit or stand for more than 1 hour. He cannot do much of anything and needs assistance dressing himself." In an addendum to this report dated April 20, 2009, Dr. McGlowan clarified that the degree of disability in his prior report should state that the claimant has a "total temporary disability." In his report relative to the July 14, 2009 examination, Dr. McGlowan indicated that the claimant has a total temporary disability. As for work restrictions, he indicated that the claimant is unable to return to his prior duties, and should remain out of work at this time. In his report relative to his examination on October 14, 2009, the doctor opined that the claimant has a "marked partial disability involving his lower lumbar spine" and further indicated that the claimant could perform sedentary work with postural changes, no repetitive lifting, no prolonged standing, sitting or walking and with a weight limit of ten (10) pounds. Dr. McGlowan also indicated in this report that the claimant has an L5 screw with a mild amount of malpositioning and, because of this, fits indications for modification of hardware with hardware removal. He recommended that the claimant follow up with his orthopedic surgeon or spine specialist for definitive treatment. Dr. McGowan also noted that the claimant has undergone physical therapy and chiropractic treatment and ambulates with a slow, tight gait.

In a reserved decision filed on June 11, 2010, the WCLJ classified the claimant with a permanent total disability.

LEGAL ANALYSIS

The Board's Medical Guidelines (1996 Edition) enumerate the criteria and factors used in determining the level of a disability referable to a back and/or neck injury. The criteria and factors for a marked partial disability include: chronic pain; long history of failed and repeated conservative treatments; persistent radicular pain; significant gait deviation; difficulties negotiating stairs and irregular terrain; back or leg pain causing interference with standing, prolonged sitting such as driving continuously for two hours at a time; markedly limited truncal mobility; positive neurological findings; neurogenic claudication; positive diagnostic tests; failed or poor response to surgical procedures; poor response to chronic pain management treatment; and bladder, bowel and/or sexual dysfunction. The Board Medical Guidelines state that in considering whether a claimant has a total disability, the criteria and factors used in determining whether a claimant has a marked partial disability should be used along with those listed for a total disability. The criteria and factors for a total disability include: use of assistive device to ambulate of more than two years duration; assistance required to undress and to get on examination table; assistance required to perform daily living activities; severe neurological deficit; disturbance of bladder, bowel and/or sexual function.

"While the guidelines provide useful criteria to be used in assessing a claimant's degree of disability, the ultimate determination rests with the Board and must be upheld if it is supported by substantial evidence (see Matter of VanDermark v Frontier Ins. Co., 60 AD3d 1171 [2009]; Matter of Hare v Champion Intl., 50 AD3d 1254 [2008], lv denied 11 NY3d 863 [2008])" (Matter of Soluri v Superformula Prods., Inc., 96 AD3d 1292 [2012]; see also Matter of Haight v Con Edison, 78 AD3d 1468 [2010]).

Here, the medical evidence and the claimant's testimony indicate that the necessary criteria of a marked partial disability were met in addition to several of the criteria of the total disability. In addition, the record indicates that the claimant has spent most of his career working in law enforcement in a physically demanding capacity. The claimant is in severe chronic pain and is reliant upon pain medication, the side effects of which are contributing to his impairment of daily living activities and ability to earn wages in any capacity.

Therefore, based upon a review of the record and a preponderance of the evidence, the Full Board finds that the claimant has a permanent total disability and a 100% loss of wage earning capacity.

CONCLUSION

Accordingly, the WCLJ decision filed on June 11, 2010, is AFFIRMED. No further action is planned at this time.