The Full Board, at its meeting held on February 26, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on May 8, 2012.
The issues presented for Mandatory Full Board Review are:
The Workers' Compensation Law Judge (WCLJ) found that the claimant had a marked permanent partial disability, found that the claimant was totally industrially disabled, and directed awards.
The Board Panel majority affirmed the WCLJ's decision.
The dissenting Board Panel member would have found that the claimant has failed to demonstrate an unsuccessful search for work within her restriction as required to find a total industrial disability, and therefore it is premature to make a finding regarding total industrial disability at this time.
In its application for Mandatory Full Board Review, filed with the Board on May 30, 2012, the group self-insured trust (GSIT) contends that the record does not support a finding of total industrial disability. The GSIT further contends that the credible medical evidence in the record does not support a finding that the claimant has a marked permanent disability, and that there should be a finding that the claimant has no continuing causally related disability, or in the alternative a mild partial disability. Last, the GSIT requests that the benefits be suspended as the claimant has not shown an attachment to the labor market.
In her rebuttal, filed with the Board on June 27, 2012, the claimant asserts that the credible medical testimony supports the position that the claimant has a marked permanent physical disability, and that based on the claimant's age, lack of education, inability to speak English, and the testimony of the vocational counselor, the record supports a finding that the claimant is totally industrially disabled.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The case is established for work-related injuries to the claimant's head, right shoulder, and neck, resulting from an August 23, 2007, accident while the claimant was working as a home health aide. The claimant's average weekly wage has been set as $480.00 per agreement. The claimant had right shoulder surgery, open reduction internal fixation (ORIF), on March 11, 2008, and surgery to remove the hardware on July 8, 2008. Various awards had been made up to February 27, 2009, and the carrier was directed to continue payments at a $200.00 tentative rate.
The GSIT submitted a Form RFA-2 (Carrier's/Employer's Request for Further Action), on March 11, 2010, requesting that they be permitted to suspend payments pursuant to its consultant's opinion that the claimant exhibits no disability and may return to work without restrictions.
In response, the case was reopened and a hearing was scheduled for April 21, 2010.
During the April 21, 2010, hearing, the claimant raised the issue of total industrial disability. The WCLJ denied the GSIT's request to suspend awards and the claimant was referred to vocational rehabilitation. The WCLJ's findings were memorialized in a Notice of Decision (NOD) filed on May 5, 2010.
By NOD filed on June 28, 2010, the GSIT was authorized to discontinue payments.
In the Board file is a Form WER-17 (Vocational Rehabilitation Report,) based on a June 22, 2010, interview of the claimant. In the report, the Board's Senior Vocational Counselor opined that the claimant did not appear to be a feasible candidate for vocational services. The counselor stated that:
"[The claimant] is 68 years old and stated that she retired from the labor market due to her injury. The claimant advised that she was injured at the age of 66 and had already applied for Social Security the year before the accident. [The claimant] reported to be unable to elevate her right dominant arm and complained of pain in her shoulder and neck with movement. She does not feel she is able to do any type of manual work as she stated she feels 'worse than before' and would not be able to perform constant movement and lifting. [The claimant] does not speak English and has no other marketable skills. The claimant asked: 'What can I do with my age and limitations.'"
The claimant's treating orthopedist, Dr. Capiola, was deposed on September 17, 2010, and testified that he first examined the claimant on March 31, 2010. The claimant complained of pain and weakness in her right shoulder and clavicle region. The claimant had weakness in her rotator cuff, limitation in forward flexion, and tenderness. He diagnosed the claimant with post-ORIF of the right clavicle and subsequent removal of hardware, with continued pain and weakness. As of her last examination on May 26, 2010, the doctor found that the claimant was totally disabled from her line of work, related to her shoulder alone. He would have to examine the claimant again and perform a functional evaluation to determine her disability beyond her prior job. He did not examine the claimant's neck. He was not aware as to whether the claimant was using her right arm for activities of daily living.
The claimant's treating physiatrist, Dr. Cabatu, was deposed on October 27, 2010, and testified he first saw the claimant on August 28, 2007. He found the claimant to have tenderness to the right side of her neck, limited range of motion in the cervical spine and right shoulder, ecchymosis of the right shoulder, and tenderness at the back of her head and right upper arm. He diagnosed the claimant with a strain/sprain to her neck and right shoulder, right shoulder acromioclavicular joint separation and a head contusion. He considered the claimant totally disabled. A September 27, 2007, MRI of the cervical spine showed disc bulge at C2-3 and C4-5 and a herniated disc at C5-6 which impinges on the thecal sac. It also shows a herniated disc at the level C5-6 compressing the spinal cord. An MRI of the shoulder done on September 24, 2007, showed acromioclavicular joint separation, contusion of the clavicle, and bursitis and synovitis. An X-ray of the right shoulder done on August 29, 2007, showed a Grade 3 separation. An X-Ray of the skull was normal. An X-Ray of the cervical spine shows displacement of C4 on C5 with disc narrowing. An X-ray of the right clavicle on April 1, 2010, shows fracture of the distal clavicle, and residual widening of the acromioclavicular joint. A nerve test performed on March 5, 2008, showed no cervical radiculopathy. The claimant had radiation of pain to the right upper extremity with weakness and numbness. The doctor believed that a nerve is being pinched at the C5-6 level. Prior to his testimony, the doctor last saw the claimant on October 1, 2010. The claimant continued to have limited range of motion in the cervical spine and the shoulder, motor strength remained weak on the right side, and she had spasm in her neck. As of that date, the diagnosis was post-ORIF to the right shoulder and removal of hardware and right cervical radiculitis. He believes the claimant has reached maximum medical improvement. He considered the claimant to have a permanent marked disability from all work. The claimant has difficulty lifting more than 10 pounds, she has difficulty with overhead movement of her shoulder, she has difficulty with reaching and pulling, and she has difficulty moving her neck side to side. The claimant indicated to him that she travels by bus.
The GSIT's orthopedic consultant, Dr. Nathan, was deposed on November 1, 2010, and testified that he examined the claimant on February 24, 2010. The claimant had mild right shoulder tenderness, mild swelling over the scar, decreased range of motion, and that her upper extremity and cervical spine examination were otherwise normal. He diagnosed the claimant with status post AC joint separation with surgery times two. He found that the claimant had reached maximum medical improvement and no further therapy, orthopedic treatment or diagnosis testing was indicated. He found that the claimant had no disability, and he did not give the claimant any restrictions on her ability to return to work. The MRI of the claimant's cervical spine, which showed herniated discs at C4-5 and C5-6 compressing the spinal cord, did not change the doctor's opinion regarding his finding that the claimant does not have a disability.
On cross-examination, Dr. Nathan stood by his opinion that the claimant, a 68 year old right hand dominant female who underwent two shoulder surgeries and had two herniated discs in her neck, with compression could return to the same type of work she previously performed. When asked whether he considered the claimant's job as a home attendant to be physically challenging, he stated that it depends on the person she is taking care of and acknowledged that it could be.
The Board Senior Rehabilitation Counselor that interviewed the claimant testified on March 8, 2011, that he has worked as a counselor for 29 years. The claimant advised that she had been retired from the labor market because of her injury (i.e. physical complaints and her limited use of her right dominant arm), she was 68 years old, and she did not speak English. He felt that the claimant was a poor candidate for retraining as she had difficulty raising her right dominant arm, she has difficulty brushing her teeth, she had two surgical procedures to the shoulder, she does not speak, read or write English, and she has no other formal training or marketable skills. At the time he saw the claimant, she had already began receiving age-based social security benefits. The claimant's only work experience consisted of 10 years of work, eight of which were as a home attendant and two of which was as a factory worker. The claimant had an 11th grade education in Puerto Rico. It was his opinion that the claimant had a very small chance of being employable.
The claimant also testified on March 8, 2011, with the aid of a Spanish interpreter. The claimant testified that she was 66 years old at the time of the accident. At that time she had already applied for and was receiving age-based social security benefits. She had planned to continue working had the accident not occurred. She is not currently looking for work because her arm hurts and she cannot move it a lot. Her August 2007 work injury caused the problem with her arm. When asked if someone were to offer her work within her restrictions, where she did not have to use her injured arm, and did not have to move a lot, she responded that she honestly did not know if she would want that job.
After summations, the WCLJ found the claimant has a marked degree of disability, found that the claimant is totally industrially disabled, modified prior awards to the temporary total disability rate, and directed the carrier to continue payments at the permanent total disability rate. The WCLJ's findings were memorialized in a NOD filed on March 11, 2011.
Degree of Disability
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 ).
Dr. Capiola testified that as of his last examination of the claimant, she continued to have pain, swelling and weakness in her right shoulder and right clavicle region. He noted his physical exam findings were forward elevation to 130 degrees, abduction to 140 degrees, she was neurovascularly intact, and she had tenderness to palpation in the right trapezius muscle. The doctor opined that the claimant was totally disabled from working as a home health aide based on her shoulder injury alone. However, he testified that he would need to evaluate the claimant again to determine her disability outside her line of work.
Dr. Cabatu testified that as of the claimant's last examination, she continued to have limited range of motion in the cervical spine and the shoulder, motor strength remained weak on the right side, and she had spasm in her neck. He diagnosed the claimant with post-ORIF to the right shoulder and removal of hardware and right cervical radiculitis. He believed the claimant has reached maximum medical improvement and opined that the claimant has permanent marked disability from all work. He noted that the claimant has difficulty lifting more than 10 pounds, she has difficulty with overhead movement of her shoulder, she has difficulty with reaching and pulling, and she has difficulty moving her neck side to side.
Dr. Nathan testified that his findings on physical exam were mild tenderness in her right shoulder, mild swelling over her surgery scar, her range of motion was decreased on her right side, and she had negative impingement sign and negative drop arm sign. He testified that the rest of the claimant's exam of her upper extremities and cervical spine were essentially normal. He opined that the claimant was at maximum medical improvement, and that no further therapy, orthopedic treatment or diagnosis testing was indicated. He found that the claimant had no disability and no restrictions on her ability to return to work. Dr. Nathan testified that the MRI findings of herniated discs at C4-5 and C5-6 compressing the spinal cord do not have any clinical correlation and would not change his opinion.
The Full Board finds that based on the credible opinion of Dr. Cabatu, which took into account the claimant's complaints, his physical examination of the claimant, and the positive diagnostic test results, the record supports a finding that the claimant has a marked degree of disability. Although, Dr. Capiola opined that the claimant was totally disabled, this was only related to her previous work as a home attendant, and did not take into account other types of employment. Dr. Nathan's credibility is diminished by his attempt to minimize the MRI findings and the physical nature of the claimant's work.
Total Industrial Disability
"A claimant who suffers from a permanent partial disability may be classified as totally industrially disabled if the limitations imposed by the compensable injury, coupled with factors such as a limited educational background and work history, render him or her incapable of gainful employment" (Matter of Kucuk v Hickey Freeman Co., Inc., 78 AD3d 1259  [internal quotation marks and citations omitted]). For a finding of total industrial disability to be made, the claimant must demonstrate how the disability combines with the other factors to render the claimant incapable of salaried employment (Matter of Guan v CPC Home Attendant Program, Inc., 50 AD2d 1218 ).
Here, the claimant testified that she had planned to continue working had the accident not occurred, that she has not worked since her August 23, 2007 accident, that she is not currently looking for work because her arm hurts and she cannot move it a lot.
The vocational counselor who interviewed the claimant opined that the claimant was not a feasible candidate for vocational services. He testified that he felt that the claimant was a poor candidate for retraining as she was 68 years old, she had difficulty raising her right dominant arm, she has difficulty brushing her teeth, she had two surgical procedures to the shoulder, she does not speak, read or write English, and she has no other formal training or marketable skills. The claimant had advised him that she had retired from the labor market due to her injury, and that she had already begun receiving regular age based social security. He opined the claimant had a very small chance of being employable.
The claimant is 68 years old, does not read, write, or speak English, she has a limited education, her job skills are limited to that of a home health aide, which two of her treating physicians have opined she is unable to be anymore, and she has no other marketable skills. The vocational counselor opined that the claimant is not a feasible candidate for retraining and there is a very small chance of her being employable. The claimant has not looked for work since her accident, but that fact is not relevant because her disability, coupled with her educational limitations, lack of training and marketable skills, and her age, render her incapable of salaried employment.
Based on the preceding, the Full Board finds the record supports a finding that the claimant is totally industrially disabled.
ACCORDINGLY, the WCLJ decision filed on March 11, 2011, is AFFIRMED in its entirety. No further action is planned by the Board at this time.