The Full Board at its meeting on September 11, 2012, considered the above captioned case for mandatory Full Board Review of the Board Panel Memorandum of Decision (MOD) filed October 26, 2011.
The issue presented for Mandatory Full Board Review is whether the claimant is entitled to awards at the moderate or marked temporary partial disability rate.
The Workers' Compensation Law Judge (WCLJ) made awards at the marked partial disability rate.
The Board Panel majority affirmed the WCLJ's decision.
The dissenting Board Panel member would find that the claimant has a moderate partial disability.
The self-insured employer (SIE) filed an application for Mandatory Full Board Review on November 10, 2011.
The claimant filed a rebuttal on December 8, 2011.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This claim is established for a work-related injury to the claimant's left shoulder that occurred on June 20, 2006, while claimant was working as a home health aide. Claimant has undergone three shoulder surgeries since her accident.
Awards were made at various rates from June 21, 2006, to July 21, 2010. Awards were increased from the moderate partial rate of $212.34 to the temporary total rate of $308.69 per week following claimant's most recent surgery on December 2, 2009. By a decision filed July 26, 2010, the WCLJ made awards from December 9, 2009, to July 21, 2010, at the temporary total rate of $308.69 per week, directed the carrier to suspend payments and directed claimant to produce up to date medical evidence of causally related disability.
In a July 27, 2010, report, claimant's treating physician, Dr. Chambers, stated, "She still hurts, but is tolerable. She is tired of not working and wants to return to work." Dr. Chambers found that claimant still has some mild restrictions, but concluded that "she is safe to return to work at full work duties."
In a December 17, 2010, medical report, the claimant's treating medical provider, Dr. DiGiovanni, stated that active elevation of claimant's right (injured) shoulder is 180 degrees, while abduction on the left is to 90 degrees, limited by pain; forward flexion of the left shoulder is 220 (sic 120 degrees); the claimant has a markedly positive impingement sign on the left; there is mild atrophy and protraction of her left shoulder; there is pain with extremes of external rotation of the left compared to the right; claimant is tender to palpitation subacromial bursal region on the left; strength is diminished on the left secondary to pain. Dr. DiGiovanni concluded that the claimant has a moderate permanent partial disability, and that she is capable of working light duty with a ten pound lifting restriction in the left arm and no above shoulder movement of the left arm.
Dr. DiGiovanni was subsequently deposed on April 28, 2011, and testified consistently with the opinion expressed in his December 17, 2010, report.
In a decision filed on March 14, 2011, the WCLJ issued the following awards to the claimant: July 21, 2010, to December 17, 2010, no medical evidence; December 17, 2010, to March 9, 2011, and continuing, at the marked partial disability rate of $231.52. The WCLJ also continued the case for the deposition testimony of the claimant's Dr. DiGiovanni and determined that the issue of labor market attachment was joined as of the March 9, 2011, hearing date.
In its application for Mandatory Full Board Review, the SIE contends that the Full Board should adopt the opinion of the dissenting Board Panel member and direct awards to the claimant at the moderate partial disability rate per the opinion of Dr. DiGiovanni. The SIE argues that the Board may not fashion its own medical opinion in direct and total conflict with the unanimous conclusion of the only physician to offer a medical opinion on the issue of degree of disability.
In rebuttal, the claimant asserts that the opinion of the Board Panel majority should be adopted by the Full Board, that the WCLJ properly concluded that a ten pound lifting restriction with no over-shoulder movements on the left is consistent with a marked partial disability.
"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 ; Matter of Hare v Champion Intl., 50 AD3d 1254 , lv denied 11 NY3d 863 )" (Matter of Soluri v Superformula Prods., Inc., 96 AD3d 1292 ; see also Matter of Haight v Con Edison, 78 AD3d 1468 ).
The Full Board finds, upon review of the evidence of record, that the claimant had a moderate partial disability as of December 17, 2010. The uncontradicted opinion of the claimant's treating medical provider Dr. DiGiovanni is that the claimant has a moderate permanent partial disability with respect to her left shoulder injury, taking into account her ten pound lifting restriction of the left arm with no above shoulder movements of the left arm. Further, as noted by the dissent, the claimant's restrictions relate to her left, non-dominant shoulder.
Accordingly, the WCLJ decision filed on March 14, 2011, is MODIFIED to find that the claimant is entitled to awards at the moderate temporary partial disability rate. No further action is planned at this time.