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Case # G0302278
Date of Accident: 04/28/2010
District Office: Peekskill
Employer: NYC Dept of Correction
Carrier: Police, Fire, Sanitation
Carrier ID No.: W846505
Carrier Case No.: 0072-10-80634
Date of Filing of Decision: 12/11/2013
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 November 19, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on February 28, 2013.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant has a schedule loss of use (SLU) of 7.5% of the right arm.

The Workers' Compensation Law Judge (WCLJ) found that the claimant has a 0% SLU of the right arm. The WCLJ further found the claimant's representative's request to strike the report of Dr. Passick pursuant to Workers' Compensation Law (WCL) 137 to be moot, stating that "for even without utilizing Dr. Passick's IME report and his testimony, the overall record dictates a 0% SLU of the right arm."

The Board Panel majority found that because Dr. Passick's IME report was not sent to the claimant's representative on the same day it was sent to the claimant's attending physician, the Board and the SIE's representative, the report failed to substantially comply with WCL 137 and the associated regulations, and should be precluded. The Board Panel majority further found that the claimant has a 7.5% SLU of the right arm based upon the opinion of Dr. Kyriakides and the Guidelines.

The dissenting Board Panel member found that the WCLJ reasonably determined that Dr. Kyriakides' SLU opinion is not credible, as post-accident treatment was limited to physical therapy, and the claimant was able to continue working full-duty as a corrections officer without restrictions and without lost time. The dissenting Board Panel member further found the opinion of Dr. Passick to be more credible than the opinion of Dr. Kyriakides, and determined that the claimant has a 0% SLU of the right arm.

On March 28, 2013, the self-insured employer (SIE) filed an application for Mandatory Full Board Review, arguing that the WCLJ's finding of 0% SLU was supported by substantial evidence and, accordingly, should have been affirmed by the Board Panel. The SIE further argued that Dr. Kyriakides' opinion on SLU was incredible as Dr. Kyriakides admitted that his determination was entirely based on range of motion deficits, and both an MRI and x-rays were performed and neither test revealed any significant abnormalities which would corroborate the doctor's SLU findings.

On April 9, 2013, the claimant filed a rebuttal, arguing that Dr. Passick's IME report and testimony were properly stricken based on WCL 137 , and that the admissible medical evidence in the Board file supports a finding that the claimant has a 7.5% SLU.

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

FACTS

On April 28, 2010, claimant, a corrections officer, was injured when he tripped on a bucket and fell while restraining a violent inmate. This case has been established for a work-related injury to the claimant's right elbow.

In an RFA-1LC (Request for Further Action by Legal Counsel) dated July 27, 2011, claimant's representative requested Board action on the issue of permanency. Attached to the RFA-1LC is a "Schedule Loss Follow Up Report" dated June 23, 2011, which was prepared by claimant's treating physician, Dr. Kyriakides. In his report, Dr. Kyriakides noted that the claimant reported that he has made some improvements, but continues to have a residual degree of pain. The claimant further reported that his greatest difficulty involves activities that require pronation. Dr. Kyriakides stated that a physical examination of the claimant's elbow revealed "supination at 80 degrees, pronation 80 degrees, flexion 125 degrees and extension at about 0 degrees." Based on his examination of the claimant, Dr. Kyriakides opined that, in accordance with the State of New York Workers' Compensation Board Medical Guidelines of (1996) ("Guidelines"), the claimant has a 10% SLU of the right elbow.

In a Practitioner's Report of Independent Medical Examination (IME) dated October 5, 2011, the SIE's orthopedic consultant, Dr. Passick, noted that a physical examination of the claimant's right elbow revealed mild olecranon tenderness on palpitation and good strength with resisted extension and flexion. Dr. Passick further noted that the claimant's range of motion for flexion, extension, pronation and supination was normal. Dr. Passick diagnosed the claimant with a right elbow contusion; concluded that the claimant has reached maximum medical improvement (MMI); and opined that the claimant has a 0% SLU of the right arm. The Board file indicates that copies of Dr. Passick's IME report were sent to the claimant's attending physician, the Board and the SIE's representative; however, a copy of the report was not sent to the claimant's representative.

In a proposed decision filed on January 10, 2012, the WCLJ directed the parties to reach an agreement regarding SLU or submit deposition transcripts of Drs. Kyriakides and Passick within 60 days of the decision.

During a deposition on February 16, 2012, Dr. Passick testified in accordance with his IME report.

During a deposition on March 1, 2012, Dr. Kyriakides testified that he examined the claimant on May 6, 2010, and that he diagnosed the claimant as having right elbow derangement. Dr. Kyriakides further testified that the claimant had an MRI performed on July 20, 2010, which revealed minimal intra-articular fluid with no effusion and no significant abnormality. According to Dr. Kyriakides, he examined the claimant on June 23, 2011, and determined that the claimant had reached MMI. Dr. Kyriakides testified that his physical examination of the claimant revealed supination of 80 degrees, pronation of 80 degrees, flexion of 125 degrees and extension was at or close to 0 degrees. Dr. Kyriakides stated that he felt that the claimant's flexion deformity of 125 degrees qualified him for a 7.5% SLU, and that the claimant's slight loss of pronation and supination entitled the claimant to a 2.5% SLU, giving the claimant a total SLU of 10% of the right arm.

On cross-examination, Dr. Kyriakides was asked whether deficits in pronation and supination apply only for injuries to the wrist, and Dr. Kyriakides replied "it's the same pronation and supination in the elbow and wrist, because what pronate and supinate are the radius and ulnar, which are the wrist distally and the elbow proximally, so it's a motion that occurs at the elbow" (Kyriakides Deposition 5/6/10, pg. 10). Dr. Kyriakides conceded that the x-ray report dated May 6, 2010, revealed no significant abnormalities, and that, to his knowledge, the claimant lost no time from work, performed full duties as required by his job, and was not placed on any restrictions.

In summations, the claimant's representative requested that the report of the SIE's consultant, Dr. Passick, be stricken from the record pursuant to WCL 137 because the report was never sent to her office. The claimant's representative further requested that the claimant be found to have a 10% SLU of the right arm.

In a reserved decision filed on July 5, 2012, the WCLJ found that the claimant has a 0% SLU of the right arm "based on the overall record (without utilizing self-insured's Dr. Passick's 10/5/11 exam report and his 2/16/12 testimony) for the overall record does not support treating Dr. Kyriakides' SLU opinion, with treatment being only physical therapy and claimant being able to continue working full-duty without restrictions, no lost time, as a correction officer." The WCLJ further found the claimant's representative's request to strike the report of Dr. Passick pursuant to WCL 137 to be moot/academic, stating "for even without utilizing Dr. Passick's IME report and his testimony, the overall record dictates a 0% SLU of the right arm."

LEGAL ANALYSIS

Here, in a "Schedule Loss Follow Up Report" dated June 23, 2011, Dr. Kyriakides stated that a physical examination of the claimant revealed "supination at 80 degrees, pronation 80 degrees, flexion 125 degrees and extension at about 0 degrees." Dr. Kyriakides confirmed his findings during a deposition on March 1, 2012. Dr. Kyriakides opined that the claimant's flexion deformity of 125 degrees qualified him for a 7.5% SLU, and that the slight loss of pronation and supination entitled the claimant to a 2.5% SLU, giving the claimant a total SLU of 10% of the right arm. Dr. Kyriakides' opinion that the claimant's flexion deformity of 125 degrees qualifies him for a 7.5% SLU is in accordance with the Guidelines; however, the Guidelines do not provide for a percentage loss of use for deficits of pronation and supination, as these deficits apply to the wrist, not the elbow. The Guidelines do provide for an SLU based on deficits in flexion and extension of the elbow, and provide for a 7.5% SLU based on flexion of the elbow to 125 agrees, as found by Dr. Kyriakides.

Therefore, the Full Board finds that the claimant has a 7.5% SLU of the right arm.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on July 5, 2012, is MODIFIED to find that the claimant has a 7.5% SLU of the right arm. No further action is planned by the Board at this time.