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 May 31, 2013.
The issues presented for Mandatory Full Board Review are:
The Workers' Compensation Law Judge (WCLJ) set the claimant's AWW at $177.02 based on a primary AWW of $109.18 and a concurrent AWW of $67.84. The WCLJ also made awards subsequent to September 27, 2011.
The Board Panel majority found a 44 week divisor inappropriate. The Board Panel majority set the AWW, without prejudice to further development of the record, at $139.94, and directed the testimony of the claimant and an employer witness on the issue of whether WCL § 14(3) should be found to apply to increase the claimant's AWW. The Board Panel majority affirmed the award of benefits after September 27, 2011.
The dissenting Board Panel member agreed with the majority opinion insofar as it affirmed awards subsequent to November 2, 2011, and agreed that further development of the record was warranted on the issue of whether WCL § 14(3) should be used to set claimant's AWW. However, the dissenting Board Panel member believed sufficient evidence existed to set the AWW tentatively at $490.38 using a 200 multiplier pursuant to WCL § 14(3) with resultant modification of awards pending the development of the record.
In its application for Mandatory Full Board Review, the self-insured employer (SIE) contended that all awards subsequent to September 27, 2011, should be rescinded pending further development of the record. The SIE contends that no awards should be due for the period September 27, 2011 (even though the claimant had causally related surgery on this date), through November 2, 2011, until some evidence is produced that she had to turn down substituting jobs due to her physical condition. The SIE further objected to any awards subsequent to November 2, 2011, based upon its contention the claimant suffered a new and unrelated accident while gardening at home.
The claimant did not file a timely application for Mandatory Full Board Review. However, in her rebuttal, the claimant argues that the Board Panel decision should be modified to set her AWW at $490.38 without further development of the record, and that she should be awarded a 30% schedule loss of use (SLU) of her left leg. The claimant argues that both her doctor (Dr. Alpert) and the SIE's consultant (Dr. Lopez) agree that a 30% SLU is indicated.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, a substitute teacher, was injured on February 15, 2011, when she turned to say hello to a colleague in a sandy hallway and slipped, breaking her left patella. This claim was established for an injury to the claimant's left knee by a decision filed January 4, 2012. The claimant underwent surgery with hardware implementation on February 16, 2011. The claimant had further left knee surgery on September 27, 2011, consisting of an arthroscopy, with synovectomy and shaving, chondroplasty, and the removal of hardware.
Although testimony was not formally scheduled, at a hearing held December 29, 2011, the claimant advised that she substituted for grades kindergarten through sixth grade, would be paid by the school district that hired her to substitute, and confirmed she did not normally work during the summer. Claimant indicated that she was concurrently employed as substitute teacher with another school district.
At a hearing held February 9, 2012, the WCLJ set claimant's AWW at $177.02 by using a 44 divisor, which yielded an AWW of $109.18 based on her primary employment and $67.84 based on her concurrent employment. The WCLJ indicated that she was utilizing a 44 divisor because this was the length of the average school year. The WCLJ then awarded benefits for the period February 16, 2011, through September 27, 2011, at $118.01 temporary total (TT) for 3.6 weeks of intermittent lost time (ILT), September 27, 2011, through November 10, 2011, at $118.01 TT, November 10, 2011, through December 26, 2011, at a $100 tentative rate (TR) less one day worked, and found no medical evidence (NME) subsequent to December 26, 2011. These findings were memorialized in a decision filed February 14, 2012.
Both the claimant and the SIE sought administrative review of the WCLJ's February 14, 2012, decision. The SIE argued that no further indemnity benefits were due subsequent to November 2, 2011, because the claimant had suffered an unrelated and intervening slip and fall while gardening at home on November 2, 2011. The SIE also argued that claimant should not be entitled to awards for the period September 27, 2011, through November 2, 2011, unless there was evidence she was offered substitute teaching during this period which she had to turn down due to her compensable injury.
In her application for review, claimant argued that she was entitled to a higher AWW and objected to the finding of NME subsequent to December 26, 2011. The claimant contended that her AWW should be set at $490.38 pursuant to WCL § 14(3).
Awards Subsequent to September 27, 2011
While there is some evidence the claimant had a subsequent fall on November 2, 2011, further development of the record is necessary to ascertain whether, in fact, this fall may have been consequential to her February 15, 2011, injury or recent causally related surgery. In fact, as noted by the claimant in her rebuttal, Dr. Alpert expressly discusses the November 2, 2011, fall and indicates it may have been due to the weakened condition of the claimant's left knee (see ECF Doc. ID # 195966891). He also indicates that the 30% SLU he assesses is "100%" related to the February 15, 2011, fall. While Dr. Alpert may be cross-examined regarding this assessment, this, with other reports identifying an ongoing causally related disability subsequent to November 2, 2011 (see ECF Doc. ID # 188762806), supports the finding that the claimant is entitled to a $100 statutory minimum rate for the period in question. Likewise, the SIE can develop the record on the issue of whether claimant's lost time subsequent to her surgery on September 27, 2011, is causally related to her injury. At present, the record reflects that claimant underwent causally related surgery on September 27, 2011, and was disabled thereafter; therefore, the medical evidence in the record supports awards at a $100 statutory minimum rate subsequent to September 27, 2011.
"The methods for calculating a claimant's average weekly wage are found in Workers' Compensation Law § 14, which include the setting of average annual earnings at 200 times 'the average daily wage or salary which he shall have earned in such employment during the days when so employed,' which are then divided by 52 to reach the average weekly wage (Workers' Compensation Law § 14, ; see Matter of Servidio v North Shore Univ. Hosp., 299 AD2d 685 ; Matter of Reasoner v New York Dept. of Motor Vehs., 110 AD2d 962 ). The 200 multiplier in Workers' Compensation Law § 14(3) applies only where a part-time employee is fully available for the employment at issue, and will not be applied if a claimant has voluntarily limited his or her work availability (see Matter of Servidio v North Shore Univ. Hosp., supra at 687; Matter of Pease v Anchor Motor Frgt., 158 AD2d 820 , lv dismissed 76 NY2d 772 )" (Matter of Kellish v Kellish Tire Sales, Inc., 12 AD3d 804 ).
An express requirement of WCL § 14(3) is that it applies "only where a part-time employee is fully available for the employment at issue, and will not be applied if a claimant has voluntarily limited his or her work availability". Both the majority and dissent agree that further development of the record is required on this issue before it can be determined whether WCL § 14(3) applies. The only dispute is whether tentative awards pending development of the record should be made based on a tentative AWW of $139.94, as found by the majority, or $490.38, as found by the dissent.
Insofar as awards were made at tentative rate based on a tentative AWW of $139.94, based on a straight 52 week divisor, and that making tentative awards based on tentative AWW of $490.38 could result in a substantial overpayment, the Full Board finds it is proper to make awards at the lower tentative rate.
Likewise, while claimant argued in her rebuttal that she should be awarded a 30% SLU of her left leg, that issue was not preserved for review by the Full Board, and is more appropriately raised at the trial level.
ACCORDINGLY, the WCLJ decision filed on February 14, 2012, is MODIFIED to tentatively set the AWW as $139.94. The WCLJ decision is also MODIFIED to reflect tentative awards from February 16, 2011, to September 27, 2011, at the statutory minimum temporary total rate of $100.00, intermittent lost time of 3.6 weeks, and tentative awards from September 27, 2011, to November 10, 2011, at the statutory minimum temporary total rate of $100.00. The case is continued for development of the record on the issue of AWW and for the testimony of the claimant and employer witnesses on whether the claimant voluntarily limited her employment or was fully available for work prior to the injury.