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Case # 70804673
Date of Accident: 03/02/2007
District Office: Rochester
Employer: Cutri Construction Inc
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 62074380-072
Date of Filing of Decision: 03/07/2013
Claimant's Attorney: Foley and Foley
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

* This decision also pertains to the following case(s): 70800314.

The Full Board, at its meeting held on January 15, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed March 6, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant's condition is amenable to a 42.5% schedule loss of use (SLU) of his right leg as found by Dr. Lefebvre or a 55% SLU of the right leg as found by Dr. Drinkwater.

In a reserved decision filed on February 8, 2011, the Workers' Compensation Law Judge (WCLJ) found the claimant has a 42.5% SLU of his right leg and apportioned the claimant's disability 50% to each of claimant's established claims.

The Board Panel majority modified the WCLJ's decision to find that the claimant has a 55% SLU of the right leg.

The dissent would affirm the WCLJ's finding that the claimant has a 42.5% SLU of the right leg.

The carrier, State Insurance Fund (SIF), filed an application for Mandatory Full Board Review on March 30, 2012.

The claimant filed a rebuttal on April 5, 2012.

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

FACTS

The claimant has two workers' compensation cases which are established for injuries to the right hip. SIF is the carrier in both cases.

WCB No. 70800314 is established for a right hip injury sustained on March 30, 2005. The claimant's average weekly wage is set at $987.78. No awards were directed in this case.

WCB No. 70804673 is established for injuries to the claimant's right hip, right leg, and right thigh sustained on March 20, 2007. The claimant's average weekly wage is set at $1,046.46. Awards were directed from February 11, 2008, to June 2, 2008, at a total rate of $400.00 per week following a right hip resurfacing procedure performed by Dr. Drinkwater on February 11, 2008.

SIF had the claimant examined by Dr. Lefebvre on January 2, 2008. In the corresponding report, Dr. Lefebvre opined the claimant's disability should be apportioned equally between both cases.

Dr. Drinkwater examined the claimant on March 2, 2010. Following this examination, Dr. Drinkwater found the claimant has a 55% SLU of his right leg.

SIF had the claimant re-examined by Dr. Lefebvre on April 27, 2010. Dr. Lefebvre found the claimant's range of motion of his right leg is: 100 degrees of flexion (7.5% SLU); 30 degrees of abduction and 10 degrees adduction (10% SLU); 0 degrees of extension; 5 degrees of internal rotation; and 20 degrees of external rotation (15% SLU). In addition to these findings, Dr. Lefebvre added 10% SLU for bone loss as the hip resurfacing is similar to a knee replacement with minimal to no bone loss. Based upon these findings, Dr. Lefebvre found that the claimant has a 42.5% SLU of his right leg.

Dr. Drinkwater was deposed on December 17, 2010, and testified that his specialty is orthopedic surgery and has a sub-specialization in reconstruction of the hip and knee. Dr. Drinkwater performed a joint hip replacement on the claimant's right hip on February 11, 2008, which involves resurfacing the femoral head and inserting a two-component metal prosthetic device. This specific procedure maintains bone preservation rather than removing the femoral head. Dr. Drinkwater examined the claimant for an SLU opinion on March 2, 2010, and pursuant to the 1996 Board Medical Guidelines (Guidelines), the claimant has a 55% SLU of his right leg. Dr. Drinkwater testified that the Guidelines provide for a 60% to 66-2/3% SLU of the leg for a total hip replacement, but because resurfacing is a similar procedure which allows the claimant to perform a little more activity and that the claimant has few persistent complaints of discomfort, Dr. Drinkwater found the claimant has a 55% SLU of his right leg. Dr. Drinkwater testified that on March 2, 2010, the claimant's physical findings on range of motion included: 5 degrees of flexion contracture; 5 to 90 degrees flexion; 5 degrees internal rotation; 10 degrees external rotation; 25 degrees abduction; and 10 degrees adduction. Dr. Drinkwater testified that he does not refer to the range of motion section of the Guidelines to determine a person's SLU unless there is some severe restriction, and the claimant did not have a severe restriction. The claimant had an excision of part of the right femoral head and the femoral neck which left the claimant with about a 40% bone loss of his right hip. If the claimant had a total hip replacement, he would have 100% loss of the femoral head and a 50% loss of the femoral neck.

Dr. Lefebvre was deposed on December 7, 2010. Dr. Lefebvre's specialty is orthopedic surgery. Dr. Lefebvre testified that following his January 2, 2008, examination of the claimant, he found the claimant's disability should be apportioned 50% to each case. Dr. Lefebvre re-examined the claimant on April 27, 2010, for the purpose of determining the claimant's SLU of the right leg. Dr. Lefebvre testified that pursuant to his range of motion findings in comparison to the Guidelines, the claimant has a 42.5% SLU of his right leg. Dr. Lefebvre testified that the resurfacing of the claimant's right hip left the claimant with minimal bone loss as opposed to a total hip replacement with removal of the femoral head. Dr. Lefebvre stated that if the claimant had undergone a total hip replacement, the Guidelines allow a finding of a 50% SLU of the leg. Dr. Lefebvre testified that in comparison to Dr. Drinkwater's March 2, 2010, report, the range of motion differences are minimal.

In a reserved decision filed February 8, 2011, the WCLJ found that pursuant to Dr. Lefebvre's testimony, the claimant has a 42.5% SLU of his right leg. In reaching this conclusion, the WCLJ discounted Dr. Drinkwater's conclusion that the claimant has a 55% SLU of his right leg as his findings were inconsistent with the Guidelines. In addition, the WCLJ apportioned the claimant's SLU 50% to each case.

LEGAL ANALYSIS

Pages 16 and 17 of the Guidelines provide the criteria regarding an SLU of the hip. The Guidelines state that 90 degrees anterior flexion of the hip is equivalent to a 10% SLU of the leg, moderate defects of both abduction and adduction equals 17.5% SLU of the leg, mild defects of both abduction and adduction equals 10% SLU of the leg, moderate defects of both internal and external rotation equals 15% SLU of the leg, and mild defects of both internal and external rotation equals 10% SLU of the leg. However, special considerations can be given upon excision of the head and neck of the femur with or without prosthetic replacement, equivalent to a 50% SLU of the leg. A total hip replacement has an average schedule of 60% to 66-2/3% of SLU of the leg.

In this case, Dr. Drinkwater testified that his SLU opinion was not based upon the claimant's range of motion; rather, it was based upon his opinion that a hip resurfacing is similar to a total hip replacement. However, Dr. Drinkwater testified that the outcomes of these procedures are quite different. When a person undergoes a total hip replacement, there is a 100% bone loss of the femoral head and a 50% bone loss of the femoral neck. In a resurfacing procedure, there is only a 50% loss of the femoral head and no loss of the femoral neck. Because the Guidelines do not mention resurfacing or how much bone loss is equivalent to a certain percentage SLU of the leg, the Full Board will utilize the range of motion findings found by Drs. Drinkwater and Lefebvre in assigning an SLU of the claimant's right leg.

In review of Dr. Drinkwater's testimony and Dr. Lefebvre's April 27, 2010, report, the claimant's range of motion was: flexion of 90 or 100 degrees, abduction of either 25 or 30 degrees, adduction of 10 degrees, internal rotation of 5 degrees and external rotation or either 10 or 20 degrees. The range of motion findings found by both doctors are similar and Dr. Lefebvre testified that the differences found between his examination and Dr. Drinkwater's findings were minimal. Thus, because Dr. Lefebvre utilized the Guidelines in providing an SLU opinion, and his finding of a 42.5% SLU of the claimant's right leg falls within the parameters set forth in the Guidelines, the Full Board finds that the preponderance of the evidence in the record supports a finding claimant has a 42.5% SLU of his right leg.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed on February 8, 2011, is AFFIRMED. No further action is planned by the Board at this time.