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 on August 21, 2013.
The issue presented for Mandatory Full Board Review is whether there is sufficient evidence to find that the claimant has a 60% loss of wage-earning capacity.
In a decision filed on May 18, 2012, the Workers' Compensation Law Judge (WCLJ) classified the claimant with a permanent partial disability, finding that "the claimant has a loss of wage earning capacity of 60.00% in the same employment or otherwise [and that] the claimant is entitled to wage loss benefits not to exceed 350 weeks." The WCLJ made awards for the period from March 27, 2012, to May 16, 2012, and continuing, at the partial rate of $500.00 per week.
In a Memorandum of Decision filed August 21, 2013, the Board Panel majority affirmed the WCLJ's decision, concluding that the claimant has a 60% loss of wage-earning capacity.
The dissenting Board Panel member would have found that the claimant retains no wage earning capacity, based on "the mandate of the Impairment Guidelines that the factors of age, transferability of skills, vocational history, educational attainment and English proficiency be considered in determining loss of wage earning capacity."
The claimant filed an application for Mandatory Full Board Review on September 21, 2013.
The self-insured employer filed a rebuttal on October 11, 2013.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This claim is established for injuries to the head, left knee, right hand, neck, back, and bilateral shoulders that resulted from an accident on February 6, 2008, while the claimant was working as a waiter for the self-insured employer (SIE). The claimant was injured when he fell on stairs while carrying a load of dishes. At the time of his injury, the claimant was 67 years old.
A hearing was scheduled for August 4, 2011, to consider whether payments should be suspended or reduced. At the hearing, the claimant testified that on July 12, 2010, he had been hit by a car. The WCLJ brought awards up to date, directed the SIE to continue awards, and continued the case to consider the impact of the intervening motor vehicle accident on the claimant's condition, and to consider the question of permanency. The claimant was directed to produce up-to-date medical evidence.
Dr. Lambrakis, the claimant's treating physician, submitted a narrative report of an examination on October 19, 2011, and noted that the claimant was injured in a motor vehicle accident that occurred about two and a half years after the initial work injury. Dr. Lambrakis opined that the claimant "remains totally disabled for any gainful employment or any physical activity medically unsupervised [and his] disability is of a permanent nature with no hope of recovery." Dr. Lambrakis opined that the claimant was totally disabled from his work injuries prior to the 2010 motor vehicle accident.
Dr. Lambrakis submitted several reports of subsequent examinations on dates between November 2, 2011, and March 23, 2012, and continued to opine that the claimant was totally disabled.
Dr. Lambrakis testified on February 10, 2012, that he has examined the claimant on a regular basis since the time of the injury in 2008. Dr. Lambrakis explained that the claimant's condition requires surgery to multiple sites of injury but that the claimant will not agree to any surgery. During the course of treatment, the claimant's condition has plateaued to the point where he cannot be improved anymore; his condition is permanent. He ambulates with the use of a cane most of the time. The claimant is totally permanently disability related to his work injuries. During cross-examination, Dr. Lambrakis stated that the restrictions on the claimant's activities of daily living are no pulling, pushing or lifting; he can only walk short distances and needs the assistance of a cane; he needs to be reminded to take his medication; and he needs assistance taking care of himself. He can sit for 20 or 30 minutes and then he needs to get up for 5 or 10 minutes before he is able to sit for another 20 minutes.
Dr. Zenetos, the claimant's treating pain management physician, submitted a narrative report of an examination on July 30, 2011, and did not provide an opinion on the degree of the claimant's impairment but did state that the claimant cannot return to work because he cannot sit/stand for more than 30 minutes, and because of the effects of his medication.
Dr. Zenetos submitted reports of subsequent examinations on five dates between December 31, 2011, and February 25, 2012, and continued to opine that the claimant cannot return to work because he cannot sit/stand for more than 30 minutes, and because of the effects of his medication.
Dr. Zenetos testified on February 14, 2012, that he has been treating the claimant for his pain regularly since 2008. He last examined the claimant in January 2012, at which time the claimant still complained of symptoms in his lower back and in his neck; numbness in his upper extremities; pain at a six out of ten; and limitations with walking, carrying, sitting or standing. His degree of disability is total. When questioned about whether the claimant could do any type of work, Dr. Zenetos stated that he is unsure what other work the claimant could do since the claimant has limitations on sitting, standing, he does not speak the language, and he has findings on the diagnostic studies. The claimant can sit or stand for less than a half an hour. He has to take breaks and stand up before he can sit again. Without a functional capacity evaluation, Dr. Zenetos was unable to state whether the claimant would be able to perform some work activity if permitted to change positions. Dr. Zenetos does not record degrees from range of motion testing. His notes do not indicate whether the claimant complained of bowel or bladder dysfunction, and do not make any recommendations for assistance with daily living. His notes do state that the claimant ambulates with a cane. Dr. Zenetos based his opinion of total disability on the positive MRI and EMG findings; the claimant's limitations; the lack of improvement from conservative treatment; and other factors such as age, and educational status.
Dr. Miller, the SIE's consulting orthopedic physician, submitted an IME-4 report of an examination on December 13, 2011, and opined that the claimant's reported injuries are causally related to the accident on February 6, 2008, but that he has no orthopedic disability at this time. Dr. Miller noted that the claimant has osteoarthritis of multiple joints, which pre-existed the work injury. Dr. Miller further opined that there is no permanency related to the injuries. Dr. Miller noted that the claimant is not working, but is capable of performing all the activities of daily living and maintaining full employment with regular duties.
Dr. Miller testified on February 28, 2012, that the claimant's pre-existing arthritis is going to limit his function. Although the work accident made things worse, over time, he has reached his baseline functional level; he has returned to status quo. Dr. Miller explained his opinion that the claimant is capable of performing all the activities of daily living as meaning walking, going to the bathroom, or going shopping. The claimant should not be standing for prolonged periods of time, and he should do no heavy lifting. In general, he has a 30 percent disability based on limited range of motion, and findings of atrophy. His disability is permanent and is likely to get more severe with age. The permanency is due to the osteoarthritic changes.
In a decision filed on March 29, 2012, the WCLJ found that the claimant exhibits a further causally related disability, which is moderate and permanent in nature; and continued the case to May 5, 2012, for the claimant's testimony on his loss of wage earning capacity. The claimant did not file a timely application for administrative review of the WCLJ's decision filed on March 29, 2012.
At the hearing held on May 15, 2012, the claimant testified that he had worked as a waiter in restaurants for nearly thirty years since arriving in the United States from Greece. He has done no other type of work in the United States. The claimant has no education beyond the sixth grade and he has not gone to any school in the United States. While working at the SIE, the claimant was able to communicate with customers in English but he cannot fully understand the English language. If a customer was talking to him about a topic that was unrelated to his work as a waiter, he could sometimes understand but not always. Prior to coming to the United States, the claimant worked as a fisherman, and also did restaurant work in Canada. After the claimant's testimony, the WCLJ found that based on a review of the claimant's age, education, English proficiency, and work experience, the claimant has some wage earning capacity. The WCLJ found that the claimant has a 60% loss of wage earning capacity. The claimant's attorney objected, and argued that the claimant should be found to have a total loss of wage earning capacity based on his disability, and also his testimony regarding relevant factors of his age, education and work history.
In a decision filed on May 18, 2012, the WCLJ classified the claimant with a permanent partial disability, finding that the claimant has a loss of wage earning capacity of 60% and is entitled to wage loss benefits not to exceed 350 weeks. The WCLJ explained that "[p]ursuant to the Board's 2012 Impairment Guidelines and the medical evidence presented . . . the claimant suffers from a lumbar spine (soft tissue) condition of E severity and a cervical spine (soft tissue) condition of Y severity." The WCLJ further explained that "[t]he claimant is capable of performing work involving sedentary work physical demands [and that] the vocational factor(s) of age, education, [E]nglish proficiency and work experience [were considered]." The WCLJ made awards for the period from March 27, 2012, to May 16, 2012, and continuing, at the partial rate of $500.00 per week.
As noted above, in the decision filed on March 29, 2012, the WCLJ found that the claimant exhibits a further causally related disability, which is moderate and permanent in nature. Thereafter, in the decision filed on May 18, 2012, the WCLJ further found that "[p]ursuant to the Board's 2012 Impairment Guidelines and the medical evidence presented . . . the claimant suffers from a lumbar spine (soft tissue) condition of E severity and a cervical spine (soft tissue) condition of Y severity."
The claimant's treating physicians testified that the claimant has limitations from his work injuries that are permanent in nature, and all of the physicians, including the SIE's, were unanimous that the claimant has limitations in his ability to carry heavy objects, to walk, and to stand for long periods of time.
Therefore, the Full Board finds that the WCLJ's finding regarding the claimant's medical impairment is supported by the preponderance of the medical evidence in the record.
Turning to the issue of loss of wage earning capacity, the amendment to Workers' Compensation Law (WCL) § 15(3)(w), which placed a limitation on the number of benefit weeks compensation is payable to a claimant with a non-schedule permanent partial disability (PPD), applies to all PPD claims with a date of accident or disablement on or after March 13, 2007, the effective date of the amendment.
In calculating a PPD claimant's loss of wage earning capacity, pursuant to WCL § 15(3)(w), the "loss of wage earning capacity" must be determined upon a preponderance of the evidence in the record concerning the nature and degree of the work-related permanent physical and/or mental impairment, work restrictions, claimant's age, and any other relevant factors, with "wage earning capacity" as its inverse.
The percentage total of the "loss of wage earning capacity" and the "wage earning capacity" must equal 100%. To the extent that WCL § 15(5-a) limited a non-working claimant's "wage earning capacity" to no more than 75% of his/her former full time actual earnings and conversely provided the non-rebuttable presumption that he/she experienced at least a 25% "loss of wage earning capacity," those provisions have now been replaced by the amendment to WCL § 15(3)(w) which provides for a "loss of earning capacity" of 85% or more and conversely a "wage earning capacity" of 15% or less.
For each claimant, the percentage representing the "loss of wage earning capacity" determines the maximum number of benefit weeks and the percentage representing the "wage earning capacity" is used to calculate the weekly rate. While the weekly compensation rate may fluctuate during the allocated benefit weeks based upon a claimant's post-injury earnings, the number of maximum benefit weeks available, determined at the time of classification, will not change. Benefit weeks will be expended when a claimant is receiving full or reduced compensation benefits, but are held in reserve when a claimant has post-injury earnings equal to or greater than his/her average weekly wage (see Matter of Buffalo Auto Recovery Service, 2009 NY Wrk Comp 80703905 [November 12, 2009]; Matter of Longley Jones Management Corp., 2012 NY Wrk Comp 60704882).
Here, the WCLJ found that the claimant has a 60% loss of his wage earning capacity, concluding that "[t]he claimant is capable of performing work involving sedentary work physical demands." However, while the WCLJ specifically noted that he had "considered the vocational factor(s) of age, education, [E]nglish proficiency and work experience," the WCLJ's finding that the claimant has only a 60% loss of his wage earning capacity based on these factors is not supported by the evidence in the record. Specifically, the claimant was 67 years old at the time of the work accident in 2008. Further, he testified that he has limited education; that other than work as a waiter, he has very limited work experience; and that since coming to the United States (in approximately 1978), he has only worked as a waiter. Finally, while the claimant testified that he was able to communicate with customers in English while working as a waiter, he noted that he cannot fully understand all conversations in English.
Therefore, the Full Board finds that based on the evidence in the record related to claimant's work restrictions, his age, education, and other relevant factors, the claimant has an 85% loss of wage earning capacity and is entitled to wage loss benefits not to exceed 450 weeks.
ACCORDINGLY, the WCLJ decision filed May 18, 2012, is MODIFIED to find that the claimant has an 85% loss of wage earning capacity and is entitled to wage loss benefits not to exceed 450 weeks; and to direct awards for the period from March 27, 2012, to May 16, 2012, and continuing, at the permanent partial rate of $500.00 per week. No further action is planned by the Board at this time.