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Case # G0385772
Date of Accident: 12/17/2010
District Office: Peekskill
Employer: NYC Dept of Corrections
Carrier: Police, Fire, Sanitation
Carrier ID No.: W846505
Carrier Case No.: 0072-11-80041
Date of Filing of Decision: 07/26/2013
Claimant's Attorney: Rella & Associates, PC
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on July 16, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on November 23, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant should be awarded a 20% schedule loss of use (SLU) of the right arm; a 45% SLU of the right small finger; and a 10% SLU of the left leg.

In a reserved decision filed on February 15, 2012, the Workers' Compensation Law Judge (WCLJ) found that the claimant has an SLU of 7.5% of the right arm, a 0% SLU of the right small finger, and a 0% SLU of the left leg.

The Board Panel majority disagreed and reversed the WCLJ's decision, finding that the claimant has a 20% SLU of the right arm, a 45% SLU of the right small finger, and a 10% SLU of the left leg.

The dissenting Board Panel member would have awarded an SLU of 7.5% of the right arm, but no SLU of the left leg and no SLU of the right small finger.

On December 24, 2012, the self-insured employer (SIE) filed an application for Mandatory Full Board Review, arguing that the Board Panel erred in reversing the WCLJ's finding of a 7.5% SLU of the claimant's right arm, a 0% SLU of the claimant's left leg, and a 0% SLU of the claimant's right small finger.

On January 7, 2013, the claimant filed a rebuttal, arguing that the opinion of the Board Panel majority should be affirmed.

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

FACTS

This case is established for injuries to the claimant's right shoulder, right small finger and left knee, which were sustained by the claimant on December 17, 2010, when he was trying to break up a fight between inmates in the course of his employment as a corrections officer.

In a C-4.3 (Doctor's Report of MMI/Permanent Impairment) dated September 23, 2011, with attached medical narrative dated September 12, 2011, the claimant's treating physician, Dr. Mehta, indicated that he examined the claimant on September 12, 2011. Dr. Mehta noted that at the time of the examination, the claimant presented with complaints of pain in his right shoulder; difficulty raising his right arm and lifting objects; pain in his right small finger; occasional difficulty bending his right small finger; pain in his left knee; occasional clicking in his left knee; and occasional giving out of his left knee. Upon physical examination of the claimant's right shoulder, Dr. Mehta found the following: no swelling or deformity; tenderness; 160/180 degrees forward elevation; 160/180 degrees abduction; 30/30 degrees adduction; 40/40 degrees internal rotation; and 70/90 degrees external rotation. Upon physical examination of the claimant's right small finger, Dr. Mehta found the following: no swelling or deformity; tenderness; mild decrease in range of motion (ROM) at the metacarpophalangeal (MCP) joint; and 70/100 degrees ROM at the proximal interphalangeal (PIP) joint. Upon physical examination of the claimant's left knee, Dr. Mehta found the following: no swelling or deformity; tenderness; complete extension possible; and 120/140 degrees flexion. Dr. Mehta diagnosed the claimant with right shoulder tendinitis, a right small finger contusion and left knee tendinitis. Utilizing the State of New York Workers' Compensation Board Medical Guidelines of June 1996 (Guidelines) Dr. Mehta opined that the claimant has a 20% SLU of the right arm, a 45% SLU of the right small finger, and 10% SLU of the left leg.

By a Notice Regarding Possible Award for Permanent Injury (EC-81.7) dated October 24, 2011, the employer was directed to advise the Board as to whether it was accepting the opinion of the claimant's treating physician regarding SLU and, if not, the employer was directed to produce a consultant's report on the issue of SLU within 60 days from the date of the notice.

In a Report of Independent Medical Examination (IME-4) dated November 7, 2011, the employer's orthopedic consultant, Dr. Westerband, indicated that he performed an orthopedic examination of the claimant's right shoulder, right wrist/hand and left knee. Upon physical examination of the claimant's right shoulder, Dr. Westerband found the following: no swelling; complaints of tenderness; 150/180 degrees forward flexion; 40/40 degrees extension; 170/180 degrees abduction; 45/45 degrees adduction; 80/90 degrees internal rotation; 80/90 degrees external rotation. Upon physical examination of the claimant's right small finger, Dr. Westerband found the following: 90/90 degrees ROM at the MCP joint; 90/90 degrees ROM at the DIP joint; 90/90 degrees ROM at the PIP joint; complaints of tenderness. Upon physical examination of the claimant's left knee, Dr. Westerband found the following: no swelling; 140/140 degrees flexion; and 0/0 degrees extension. The doctor diagnosed the claimant with a resolved right shoulder contusion, status-post right fifth finger proximal phalanx fracture (per claimant) and resolved left knee contusion. According to Dr. Westerband, based on the Guidelines, he concluded that the claimant's condition is permanent and equal to a 7.5% SLU of the right arm, 0% SLU of the left leg, and 0% SLU of the right fifth digit.

During a deposition on January 6, 2012, Dr. Mehta testified in accordance with his medical report dated September 23, 2011, with attached medical narrative dated September 12, 2011. The doctor explained that he gave the claimant a 20% SLU for the right arm (7.5% for a ROM of 160/180, 7.5% for abduction of 160/180, and 5% for external rotation of 70/80); a 45% SLU for the right small finger (25% for a mild decrease in ROM at the MCP joint, and 20% for ROM at the PIP joint of 70/100); and a 10% SLU for the left knee (based on flexion of 120/140). On cross-examination, Dr. Mehta testified that the claimant returned to work on December 30, 2010, full duty with the recommendation of homecare consisting of exercises. The doctor indicated that the claimant did not require physical therapy, diagnostic testing or surgery and conceded that his opinion on SLU was based solely on range of motion deficits.

During a deposition on January 20, 2012, Dr. Westerband testified in accordance with his IME report. On cross-examination, the doctor indicated that he tested the claimant's range of motion only once. Dr. Westerband conceded that he found that the claimant had 150 degrees forward flexion in the right shoulder and that 170-180 degrees is normal. Dr. Westerband further conceded that the claimant's internal and external rotation was reduced to 70 degrees, which he considered a mild defect in range of motion. The doctor was read an excerpt from page 15 of the Guidelines which provides in part: "A mild defect of internal and external rotation equals ten percent loss of use of the arm." When questioned as to whether his opinion regarding permanency to the right arm needed to be amended because he only found a 7.5% SLU of the arm based on forward flexion and internal and external deficits, the doctor responded "it depends," but then stated that he stands by his numbers which gives the claimant a 7.5% SLU of the right arm.

In a reserved decision filed on February 15, 2012, the WCLJ found the opinion of Dr. Westerband to be more credible than the opinion of Dr. Mehta and awarded the claimant a 7.5% SLU of the right arm.

LEGAL ANALYSIS

The record reflects that the claimant had no lost time from work and received minimal medical treatment as a result of his December 17, 2010, accident. The significant physical findings and resulting SLU opinions provided by Dr. Mehta are completely inconsistent with the relatively insignificant injuries that claimant appears to have sustained. Therefore, the Full Board finds the physical findings and resulting SLU opinions of Dr. Mehta to be incredible, and that the physical findings of Dr. Westerband are credible.

Shoulder

Dr. Westerband found that the claimant had 150 degrees forward flexion in the right shoulder and noted that 170-180 degrees is normal. Dr. Westerband further found that the claimant had internal and external rotation of 70 degrees in his right shoulder and noted that 80-90 degrees is normal. Based on these findings, Dr. Westerband concluded that the claimant has a 7.5% SLU of the right arm. The Guidelines provide that normal anterior flexion of the shoulder is 180 degrees and that anterior flexion defects at 135 degrees equates to a 20% SLU of the shoulder (Guidelines, pg.17). The Guidelines further provide that mild defects of internal and external rotation equals 10% loss of use of the arm. Dr. Westerband testified that the claimant had 150 degrees forward flexion, which is 20-30 degrees below the normal range, yet Dr. Westerband did not assign any percent of SLU to the claimant's right arm for the reduction in forward flexion. However, the Guidelines, which assign a 20% SLU for anterior flexion defects at 135 degrees, make it clear that defects in flexion should be factored into an award for an SLU of the arm. In addition, Dr. Westerband testified that the claimant had a mild defect in internal and external rotation, which, according to the Guidelines, equates to a 10% SLU, yet Dr. Westerband only gave the claimant a 7.5% SLU of the right arm. During his deposition, despite being asked to explain why his permanency finding with regard to the right arm differed from the SLU recommended in the Guidelines, Dr. Westerband failed to provide an explanation. Rather, when questioned as to whether his opinion regarding permanency to the right arm needed to be amended because he only found a 7.5% SLU of the arm based on forward flexion and internal and external deficits, the doctor merely responded "it depends," and stated "I stand by my numbers" (Westerband Deposition, January 20, 2012, pgs. 15-17).

Based on the physical findings of Dr. Westerband and consistent with the Board's Guidelines, the Full Board finds that the claimant has a 10% SLU of the right arm.

Left Knee and Right Small Finger

Based on the physical findings of Dr. Westerband and consistent with the Board's Guidelines, the Full Board finds that claimant has no SLU of the left leg or right small finger.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on February 15, 2012, is MODIFIED to find that the claimant has a 10% SLU of the right arm. No further action is planned by the Board at this time.