Case # 00027039
Date of Accident: 04/03/2000
District Office: Peekskill
Employer: City Waste Services of NY, Inc
Carrier: Commercial Compensation Ins
Carrier ID No.: W058507
Carrier Case No.: W890013957
Date of Filing of Decision: 10/10/2012
Claimant's Attorney: Delgatto, Janesch & Prisco LLC
Panel: Robert E. Beloten

The Full Board, at its meeting held on September 11, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on December 1, 2011.

ISSUE

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

In a decision filed on December 3, 2010, the Workers' Compensation Law Judge (WCLJ) found that the claimant is totally industrially disabled as a result of his work-related injury.

The Board Panel majority affirmed the WCLJ's decision in its entirety, concluding that the credible evidence supports a reclassification of the claimant to a total industrial disability.

The dissenting Board Panel member would have found insufficient evidence to support a reclassification of the claimant to a total industrial disability. In the alternative, the dissenting Board Panel member would have found that it is premature to reclassify the claimant to a total industrial disability since authorization has been sought for further surgery.

The carrier filed an application for Mandatory Full Board Review on December 20, 2011.

The claimant filed a rebuttal filed on January 3, 2012.

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

FACTS

This claim is established for a back injury that resulted from an accident on April 3, 2000, when claimant fell while cleaning a sanitation truck.

In a decision filed on March 20, 2001, the WCLJ noted that the claimant had raised the issue of total industrial disability, and referred the claimant to the Board's Office of Vocational Rehabilitation.

In a letter dated April 6, 2001, the Board's Rehabilitation Bureau noted that the claimant was interviewed on March 27, 2001, and reported that he did not think that he would benefit from vocational training due to the severity of his pain and his limited education. The report of the vocational rehabilitation counselor dated April 4, 2001, is also in the record and states that the claimant reported that he did not know what his plans were for the future. The counselor explained the training services that were available through VESID (now ACCES-VR), but the claimant indicated that he wished to discuss this matter further with his attorney.

In a letter dated August 23, 2001, the Board's vocational rehabilitation counselor indicated that the claimant was referred to VESID for evaluation and training.

In a letter dated August 30, 2001, the counselor's assistant at VESID informed the claimant that he was invited to attend a group orientation on any Monday from 8:45 a.m. to 12:45 p.m. In a handwritten note on the bottom of the letter, the VESID counselor's assistant confirmed that the claimant did come in for an orientation but was unable to sit long enough for a session since he was in a lot of pain (ECF Doc ID #65347173).

In a letter dated October 16, 2001, the claimant's attorney requested that the case be reopened because the claimant attempted VESID but was told by the instructor that he was not a candidate. The claimant's attorney requested a hearing on the issue of total industrial disability (ECF Doc ID #60253775).

In a notice dated November 6, 2002, the Board's vocational rehabilitation counselor indicated that VESID confirmed that the claimant is currently registered with VESID in the Bronx, has been determined to be eligible, and is awaiting a referral for a vocational evaluation.

In a decision filed on March 12, 2003, the WCLJ classified the claimant with a permanent partial disability, moderate to marked in degree, and directed the carrier to continue payments at the rate of $215 per week.

A hearing was scheduled to occur on October 2, 2009, to consider whether the claimant's awards should be suspended or reduced. In a decision filed on October 7, 2009, the WCLJ directed the parties to submit deposition transcripts of Dr. Peress and Dr. Soren, and continued the case.

On October 28, 2009, Dr. Peress, the claimant's treating doctor, testified that he has been treating the claimant since July 25, 2002. The claimant had undergone two separate back surgeries due to the work-related accident of April 3, 2000. As of his September 15, 2009, examination, the claimant was using a cane to ambulate, he had restricted ranges of motion, and he was being prescribed pain medications. Dr. Peress diagnosed the claimant as status post-failed artificial disc replacement, secondary to facet joint syndrome. Dr. Peress testified that he was requesting authorization to perform a limited spinal fusion procedure, that claimant was temporarily totally disabled, and absent completion of the requested surgical procedure, the claimant should be classified at a permanent total disability. Upon cross-examination, Dr. Peress acknowledged that the claimant is able to perform a variety of the activities of daily living. The claimant is not a candidate for vocational retraining for lighter work because he does not have a sufficient degree of education, he has no other trade skill, and he cannot sit for any period of time that is commensurate with gainful employment. The claimant has not been prescribed any assistive devices for walking. The claimant does not satisfy several of the criteria for a total disability finding, as referenced in the Board's June 1996 Medical Guidelines.

On November 18, 2009, Dr. Soren, the carrier's consulting doctor, testified that he examined the claimant on July 10, 2009. The claimant underwent thoracic spine surgery in 2005, lumbar spine surgery in 2006, and a "laser surgery" procedure in May of 2009. The claimant presented at the July 10, 2009, examination with complaints of lower back pain radiating to his left lower extremity and with numbness of the bilateral feet. Dr. Soren diagnosed the claimant with thoracic and lumbar spine contusions; with a lumbosacral sprain and lumbar radiculopathy; status post-anterior lumbar discectomy with a prosthetic disc replacement at the L5-S1 level; with thoracic discogenic pain, myelopathy, radiculitis, and derangement; as status post-anterior thoracic discectomy, interbody fusion and posterior thoracic fusion with instrumentation; and with lumbar discogenic pain and derangement. Dr. Soren recommended that the claimant continue with his pain management treatment. Further, back surgery was unlikely to improve his condition. The claimant would be capable of returning to work in a light-duty or sedentary capacity. The claimant's disability was consistent with a temporary moderate partial disability, and a final permanency evaluation could be made in either November or December of 2009. Upon cross-examination, Dr. Soren acknowledged that the claimant may be a candidate for additional back surgery if a comprehensive conservative approach to his back treatment is unsuccessful. Dr. Soren further acknowledged that, if the claimant attempts to return to work, he will be subject to a variety of different physical restrictions including lifting, bending, and prolonged sitting, standing or walking.

After development of the record, the motion to reduce the rate was denied by the WCLJ, and the $215 rate continued.

On September 20, 2010, the Board received an RFA-1 (Claimant's Request for Further Action), in which the claimant requested a hearing on the issue of total industrial disability "per attached evidence from VESID." Attached to the claimant's RFA-1 is a letter dated September 2, 2010, in which the vocational rehabilitation counselor at VESID informs the claimant that VESID has determined that he is not eligible for vocational rehabilitation services because his disability is too severe. Also attached to the RFA-1 is a report signed by Dr. Peress and dated February 1, 2010, which provides the claimant's work restrictions: no climbing ladders, no frequent stair climbing, no sitting for more than 20-30 minutes at a time and no more than a total of four hours sitting time per day, no walking for more than 10-15 minutes, with a cane; no carrying more than 10 pounds; no lifting more than 15 pounds; no pushing or pulling activities; no activities that require foot controls; and no bending, squatting, crawling, or twisting. Dr. Peress recommends sedentary work, with the freedom of movement to change position from sitting to standing, such as an office environment.

At the hearing held on November 30, 2010, the claimant testified that he is 39 years old. His education is limited to the completion of sixth grade at a Brooklyn public school; he was expelled from school during the course of seventh grade. He began working in a variety of "off-the-books" employments starting at the age of 14 or 15 years old. Generally, he has worked in construction or construction-related industries. Prior to his workplace accident, he was working for the employer as a laborer and performing mechanic-type activities. He never received any specialized training from his employers during the course of his work career. Approximately five years ago he participated in a VESID retraining program, but was unable to successfully participate due to his poor reading skills. The claimant said the man there pulled him to the side and said "this is not for you." He was referred to VESID more recently, at which time the rehabilitation counselor interviewed the claimant to assess his educational and skill background. The counselor advised the claimant that he was not a good candidate for the retraining programs. The claimant testified that he cannot operate a computer because he can barely read, and he does not have a driver's license. His wife fills out documents for him. He has never looked for work. He has not tried to go back to school or take any classes other than his contact with VESID.

In a decision filed on December 3, 2010, the WCLJ found that the claimant is totally industrially disabled as a result of his work-related injury.

LEGAL ANALYSIS

A claimant who has a permanent partial disability may be classified as totally industrially disabled where the medical limitations imposed by the underlying disability, coupled with other factors, such as the claimant's educational background and work history, render the claimant incapable of salaried employment (see Matter of Campbell v AC Rochester Prods., 268 AD2d 711 [2000]; Matter of Spangenberg v View Point Realty Corp., 178 AD2d 809 [1991]). Whether a claimant indeed has sustained a total industrial disability is a question of fact for the Board to resolve (Spangenberg, 178 AD2d 809 [1991]).

Here, the vocational rehabilitation counselor at VESID determined in September 2010, that the claimant is not a viable candidate for vocational rehabilitation services because the claimant's disability is too severe. The counselor's opinion in this regard is supported by the testimony of Dr. Peress. Specifically, Dr. Peress testified that the claimant is not a candidate for vocational retraining for lighter work because he does not have a sufficient degree of education, he cannot sit for a period of time that is commensurate with gainful employment, and he cannot sit or stand and work over a bench doing assembly work. Dr. Peress' opinion is consistent with the work restrictions provided by Dr. Soren, who testified that the claimant should be restricted from work that requires prolonged sitting or standing.

As noted herein, the carrier argues that the claimant was not credible when he testified that he was told twice by VESID that he would not benefit from its services. The carrier argues that the claimant was never told this by VESID prior to 2010. However, a review of the record reveals that in 2001, following the claimant's attempt to attend a group orientation, the VESID counselor had noted that due to his severe pain, the claimant was unable to sit long enough to complete the orientation (see ECF Doc ID #65347173).

Ordinarily, in assessing total industrial disability, the Board will require a claimant to demonstrate an inability to find work. However, where the record reflects, as here, that VESID [ACCES-VR] has determined that claimant is not a viable candidate for vocational rehabilitation; the Board can use that evidence in lieu of a fruitless job search. This is analogous to the Board's approach in Matter of American Axle, 2010 NY Wrk Comp 80303659, with respect to labor market attachment.

Finally, the authorization for back surgery is not a pending issue. Dr. Peress was notified by the Board that his C4-Auth was defective because it was not signed. He never sent a new request. Therefore, there is no pending surgery authorization request.

Therefore, the Full Board finds that the credible evidence supports a reclassification of the claimant to a total industrial disability.

CONCLUSION

Accordingly, the WCLJ decision filed December 3, 2010, is AFFIRMED. No further action is planned by the Board at this time.