The Full Board, at its meeting held on February 11, 2014, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed July 29, 2013.
The issue presented for Mandatory Full Board Review is whether the medical evidence in the record supports the schedule loss of use (SLU) awards made to the claimant.
The Workers' Compensation Law Judge (WCLJ) found that the claimant has a 7.5% SLU of the left hand; a 40% SLU of the left arm; a 7.5% SLU of the left leg; and a 7.5% SLU of the right leg.
The Board Panel majority affirmed the WCLJ's decision.
The dissenting Board Panel member would find that claimant had not reached maximum medical improvement and would refer claimant to an impartial medical specialist.
The self-insured employer (SIE) filed an application for Mandatory Full Board Review on August 28, 2013.
The claimant filed a rebuttal on September 27, 2013.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On March 27, 2009, claimant, an administrative assistant, sustained injury when she tripped and fell landing on her hands and knees. This case has been established for injuries to the claimant's neck, both shoulders, both knees and both hands.
In a C-4.3 (Doctor's Report of MMI/Permanent Impairment) dated August 8, 2011, and accompanying addendum, claimant's treating physician, Dr. Lazatin, noted that she examined the claimant on August 8, 2011, and concluded that the claimant had reached maximum medical improvement (MMI). Dr. Lazatin opined that the claimant has a 40% SLU of the left arm; a 7.5% SLU of the left hand; a 7.5% SLU of the left knee; and a 7.5% SLU of the right knee. According to Dr. Lazatin, she determined the percentage loss of use for each body part based upon the claimant's symptoms and range of motion.
In an EC-81.7 (Notice Regarding Possible Award for Permanent Injury) dated September 1, 2011, the Board informed the SIE that the Board had received a medical report from Dr. Lazatin indicating that the claimant has a permanent impairment resulting in a 40% SLU of the left arm. The Board requested that the SIE advise the Board if it was accepting this opinion or would be seeking an independent medical examination (IME) on the issue of permanency. The Board further informed the SIE that the record would be closed 60 days from the date of the letter, and that if an IME report was not filed by that date, the opportunity to submit a report may be deemed waived.
The SIE failed to submit an IME report within 60 days of the date of the EC-81.7 and, in a notice of decision filed on November 8, 2011, the WCLJ precluded the SIE from obtaining an IME report on the issue of SLU and continued the case for the deposition of Dr. Lazatin.
During a deposition on December 19, 2011, Dr. Lazatin testified that she first examined the claimant on April 3, 2009, when the claimant came to see her after she tripped and fell at work, causing her to land on her hands and knees. At the time, the claimant complained of neck pain, bilateral shoulder pain, bilateral hand pain and bilateral knee pain. According to Dr. Lazatin, she performed an examination of the claimant, including range of motion testing, and diagnosed the claimant with "bilateral shoulder sprain or strain with possible bilateral wrist sprain or strain and bilateral knee sprain or strain or possible torn ligament" (Lazatin Deposition 12/19/11, pg. 6). Dr. Lazatin testified that she first felt that the claimant had reached MMI on April 27, 2011, but that her final report on the issue of permanency was based on an examination of the claimant on August 8, 2011. Dr. Lazatin testified that based on her examination of the claimant, she determined that the claimant has a 40% SLU of the left arm; a 7.5% SLU of the left hand; a 7.5% SLU of the left knee; and a 7.5% SLU of the right knee.
According to Dr. Lazatin, she based her opinion of SLU on the 1996 Workers' Compensation Board Medical Impairment Guidelines (Guidelines). Specifically, Dr. Lazatin testified that she based her finding of a 40% SLU of the left arm on claimant's decreased range of motion in her left shoulder on abduction and internal and external rotation, and on the fact that claimant has continuous inflammation of the left shoulder manifested by painful range of motion and tenderness of the shoulder on the acromial joint and sub acromial joint. Dr. Lazatin testified that she based her opinion that the claimant has a 7.5% SLU of the left hand on claimant's decreased dorsiflexion and that the claimant experiences pain and weakness in her left hand. With respect to the claimant's left and right knees, Dr. Lazatin stated that she based her finding of a 7.5% SLU on the fact that the claimant experiences weakness and buckling of the knees.
On cross-examination, Dr. Lazatin testified that she assigned the claimant a 20% SLU of the left arm for defects in abduction, 10% SLU for defects in internal and external rotation and 10% SLU for pain and inflammation, for a total SLU of 40% for the left arm. Dr. Lazatin again stated that she based her findings regarding SLU on the Guidelines, but conceded that the Guidelines do not provide a specific percent SLU for pain and inflammation. Dr. Lazatin testified that an examination of the claimant's left shoulder revealed 140 degrees of abduction out of 180 degrees of abduction and mild defects in internal and external rotation.
Dr. Lazatin testified on cross-examination that an MRI of claimant's neck showed disc bulging and a herniated disc at T1 and T2, and that claimant indicated that she would decline to have neck surgery, even if it was recommended, when he advise that surgery was a possibility. When asked whether claimant's neck condition had completely resolved as of her last examination of the claimant on August 8, 2011, Dr. Lazatin responded, "No, the neck is hard to treat, the patient complains of vertigo" (p. 21). When asked again whether again whether claimant's neck injury had resolved, Dr. Laztin responded, "No, because patient still has symptoms as I told you and not properly treated because the patient cannot tolerate the full treatment. I can I tell you that" (p. 22)
On re-direct, Dr. Lazatin testified that claimant required treatment for her neck "[o]nly as needed" (p. 23). Dr. Laztin also testified that the claimant's condition is static and requires no more active treatment, and that the claimant's injuries are amenable to a SLU.
In a notice of decision filed on April 12, 2012, as amended on March 11, 2013, and March 19, 2013, the WCLJ found that the claimant has a 7.5% SLU of the left hand; a 40% SLU of the left arm; a 7.5% SLU of the left leg; and a 7.5% SLU of the right leg and directed that the total schedule award, less payments already made, be paid to the claimant in one lump sum without commutation to present value in accordance with Workers' Compensation Law §§ 15(3)(a) through (t) and 25(1)(b).
"'Whether a condition warrants a schedule loss award or an award of continuing disability benefits is a question of fact for resolution by the Board' (Matter of Dillabough v Jaquith Indus., 305 AD2d 884  [citations omitted]; see Matter of Somers v Texaco, Inc., 174 AD2d 842 ) . . . Where there is no continuing need for medical treatment and the medical condition is essentially stable, a schedule loss of use award is appropriate rather than an award for continuing disability benefits (compare Matter of Walker v New Process Gear Div., 201 AD2d 768 ; Matter of Jett v Lew Mark Baking Co., 192 AD2d 895 )" (Matter of Jweid v Vicks Lithograph & Print., 25 AD3d 930 ).
The Guidelines provide, in relevant part, that a "Final adjustment of a claim by a schedule award must comply with the following medical requirements: [...] 4. No residual impairments must remain in the systemic area (i.e., head, neck, back, etc.) before the claim is considered suitable for schedule evaluation of an extremity or extremities involved in the same accident." (Guidelines, p. 4).
This claim has been established for injuries to claimant's neck, both shoulders, both knees and both hands, resulting from an accident on March 27, 2009. Claimant seeks SLUs for the left hand, left arm, left leg; and right leg, based on opinion of Dr. Lazatin. However, Dr. Lazatin testified that claimant's neck injury has not resolved and remains symptomatic. Dr. Lazatin testified that an MRI of claimant's neck showed disc bulging and a herniated disc at T1 and T2, and that claimant indicated that she would decline to have neck surgery, even if it was recommended.
Insofar as the Guidelines provide that an SLU is not warranted when residual impairments remain in a systemic area, such as the neck, which was injured in the same accident as the extremities for which SLUs are sought, and in light of Dr. Lazatin's testimony, the preponderance of the evidence in the record supports a finding the injuries to claimant's extremities are not currently amenable to SLUs.
ACCORDINGLY, the WCLJ decisions filed April 12, 2012, as amended on March 11, 2013, and March 19, 2013, are MODIFIED to rescind, without prejudice, all SLU awards. No further action is planned by the Board at this time.