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Case # G0304436
Date of Accident: 06/07/2010
District Office: NYC
Employer: The Millenium Broadway
Carrier: New Hampshire Insurance Co
Carrier ID No.: W154009
Carrier Case No.: 10644B23207
Date of Filing of Decision: 12/11/2013
Claimant's Attorney: Kelman, Winston & Vallone, 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 April 30, 2013.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant has a 30% schedule loss of use (SLU) of the right hand.

The Workers' Compensation Law Judge (WCLJ), among other things, found that the claimant has a 30% SLU of the right hand.

The Board Panel majority agree that the claimant has a 30% SLU of the right hand.

The dissenting Board Panel member found that the record does not support a finding of permanency and that the claimant's compensable right wrist condition is not amenable to a schedule loss of use finding.

On May 28, 2013, the carrier filed an application for Mandatory Full Board Review, arguing that the credible medical evidence demonstrates that the claimant did not sustain any loss of use of her right hand.

No rebuttal was filed.

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

FACTS

On June 7, 2010, claimant, a hotel room attendant, was injured when an electrical panel fell and struck her while she was removing towels from a shelf. This case is established for injuries to the claimant's head, neck and right wrist.

In a C-4.3 (Doctor's Report of MMI/Permanent Impairment) dated June 19, 2012, claimant's treating physician, Dr. Drazic, noted that an MRI of the claimant's right wrist was performed on July 22, 2010, which revealed a scapholunate ligament tear. A physical examination of the claimant revealed dorsiflexion of the right wrist of 60 degrees; palmar flexion of 60 degrees; ulnar deviation of 20 degrees; radial deviation of 10 degrees; supination and pronation of 80 degrees; negative Tinel's, Phalen's and Finkelstein Sign; no point tenderness in the snuffbox region; negative CMC grind; and 4+ to 5/5 strength in all planes. Dr. Drazic diagnosed the claimant with a right wrist contusion, strain and history of scapholunate ligament tear. Dr. Drazic opined that the claimant has a 30% SLU of the right hand.

In a Practitioner's Report of Independent Medical Examination (IME-4) dated August 29, 2012, the carrier's consultant, Dr. Toriello, reported that a physical examination of the claimant's right wrist revealed full range of motion free of pain; no thenar or hypothenar eminence atrophy; and grip and pinch strength were within normal limits. Dr. Toriello concluded that the claimant does not require any further orthopedic care, is able to return to work and normal daily living activities without restriction, and has no schedule loss of use due to the injury sustained in the work-related accident.

During a deposition on December 3, 2012, Dr. Drazic testified in accordance with his medical report dated June 19, 2012. Dr. Drazic testified that an MRI of the claimant's right wrist, taken on July 22, 2010, revealed a ligament tear to the area which allows the hand and thumb to function as a unit. According to Dr. Drazic, the claimant would experience pain as a result of such a tear. Usually such a tear is surgically repaired; however, the claimant elected not to have surgery. Dr. Drazic testified that the type of work the claimant performs in the course of her employment as a housekeeper would aggravate her wrist condition.

On cross-examination, Dr. Drazic acknowledged that the claimant was working at the time of his examination of her wrist. Dr. Drazic stated that he performed the range of motion examination of the claimant's wrist with the assistance of a goniometer. According to Dr. Drazic, he performed the actual movement two or three times before settling on a reading or finding. Dr. Drazic admitted that he did not examine the claimant's left wrist for comparison purposes. According to Dr. Drazic, the Finkelstein test is to determine if there is any evidence of tendinitis in the thumb. Dr. Drazic stated that he based his finding of a 30% SLU on the claimant's clinical findings, range of motion and MRI findings.

During a deposition on December 10, 2012, Dr. Toriello testified in accordance with his IME report. Dr. Toriello testified that at the time of the examination, the claimant complained of general right wrist pain. According to Dr. Toriello, in addition to range of motion tests, he checked the claimant's hands for atrophy; did several tests for carpal tunnel syndrome; checked the strength of her grip and pinch; and tested her reflexes. Dr. Toriello stated that his examination did not reveal clinical finds to support a finding of a scapholunate ligament tear in the right wrist.

On cross-examination, Dr. Toriello acknowledged that his findings with regard to the claimant's range of motion were not indicated in his IME report, and he conceded that he does not have an independent recollection of the claimant. Dr. Toriello further acknowledged that he did not review the actual MRI report as it was not provided to him. When questioned concerning the fact that the claimant's right wrist MRI showed a ligament tear, Dr. Toriello stated that the tear could cause the claimant to experience pain and that manual labor could aggravate the wrist condition. When questioned further, Dr. Toriello indicated that the type of tear reflected on the MRI could affect an individual's wrist motion. However, in this case, Dr. Toriello opined that if the claimant does indeed have a scapholunate ligament tear, it is asymptomatic.

In a reserved decision filed on January 31, 2013, the WCLJ, among other things, found that the claimant has a 30% SLU of the right hand.

LEGAL ANALYSIS

It is well settled that 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 [1997], lv denied 90 NY2d 808 [1997]; Matter of Wood v Leaseway Transp. Corp., 195 AD2d 622 [1993]). 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 [2005]).

In the present case, Dr. Drazic credibly testified regarding his findings upon physical examination of the claimant's right wrist. The Board Medical Guidelines (2006) (Guidelines) set forth the criteria and factors to be used when evaluating work-related injuries and functional impairments. For a wrist injury, the Guidelines provide that a 7.5%-10% SLU is afforded when the dorsiflexion range of motion is limited to 60 degrees; a 7.5% SLU is afforded when the palmar flexion range of motion is limited to 60 degrees; and a 7.5%-10% SLU is afforded when there is a mild defect in pronation or supination range of motion. Dr. Drazic's examination revealed dorsiflexion restricted at 60 degrees; palmar flexion restricted at 60 degrees; that pronation/supination was found to be mildly restricted at 80 degrees; ulnar deviation restricted at 20 degrees; and radial deviation restricted at10 degrees. Accordingly, Dr. Drazic's opinion that the claimant has a 30% SLU of the right hand is in accordance with the Guidelines and is, therefore, appropriate.

Additionally, while Dr. Toriello found that the claimant's range of motion was full and pain free, Dr. Toriello did not document the types of tests performed or the results of any such tests. Dr. Toriello also acknowledged that at the time of the examination, the claimant reported experiencing pain in her wrist; that a ligament tear could cause the claimant to experience pain in her wrist; that the type of ligament tear sustained by the claimant could affect wrist motion; and that the claimant's work as a housekeeper could aggravate her wrist condition. Although Dr. Toriello stated that he did not find any clinical finds to support a finding of a scapholunate ligament tear in the right wrist, an MRI taken of the claimant's wrist showed such a tear. Dr. Drazic credibly testified that the ligament tear shown on the MRI is usually repaired surgically. In this case, the claimant declined to undergo the recommended surgery, which indicates that the claimant's ligament tear still exists.

Therefore, the Full Board finds that the claimant has a SLU of 30% of the right hand.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on January 31, 2013, is AFFIRMED. No further action is planned by the Board at this time.