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Workers' Compensation Board

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Case # G0517681
Date of Accident: 12/05/2011
District Office: NYC
Employer: The Durst Organization Inc.
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 65293003
Date of Filing of Decision: 01/25/2017
Claimant's Attorney: Kapetanos & Belibasakis, LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on December 20, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on August 29, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is proper percentage of loss of wage earning capacity (LWEC).

The Workers' Compensation Law Judge (WCLJ) found that claimant has an 80% LWEC.

The Board Panel majority modified the WCLJ decision, and found that the claimant has an 85% LWEC.

The dissenting Board Panel member would find that an 80% LWEC was appropriate in this case, and would affirm the WCLJ.

In its application for Mandatory Full Board Review, the carrier asserts that the WCLJ's finding that claimant has an 80% LWEC should be affirmed and that the Board Panel failed to explain the reason for the increase to an 85% LWEC.

The claimant argues in her rebuttal that the Board Panel majority decision should be affirmed.

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

FACTS

This claim was initially established for work-related injuries to the neck, left wrist, left shoulder, left elbow, and right wrist, and was later amended to include major depressive disorder. The average weekly wage for the year before the December 5, 2011, accident was set at $942.01. During the hearing held on July 21, 2015, the parties were directed to take testimony of several medical witnesses on the issue of permanent medical impairment, and the case was continued.

Dr. Sanchez, the claimant's treating physician, was deposed on September 3, 2015, and testified that he began treating the claimant for the spinal stenosis, carpal tunnel syndrome, left shoulder impingement and left elbow epicondylitis. The doctor recommended that the claimant have neck surgery, but the claimant declined. The doctor performed a permanency evaluation on March 2, 2015, and found that claimant can occasionally sit, stand, walk, as well as, lift or pull more than two pounds. Dr. Sanchez found that the claimant can walk for fifteen to thirty minutes, and sit or stand for twenty to twenty-five minutes. The doctor testified that the claimant cannot climb or kneel. The claimant's carpal tunnel syndrome also limits her ability to hold objects like a phone for a prolonged period of time. Dr. Sanchez testified the claimant cannot return to work in any capacity, and he indicated a less than sedentary work capacity on his C-4.3 form.

The C-4.3 by Dr. Sanchez, dated March 24, 2015, indicates that claimant has a permanent cervical impairment of severity ranking H, and that considering all her conditions and functional limitations, she cannot do even sedentary work.

Dr. Silva, the claimant's treating psychologist, was deposed on September 10, 2015, and testified that she does not believe that the claimant is capable of any type of work, and she concluded that the claimant has a marked partial psychiatric disability. The doctor diagnosed the claimant with severe major depression and found that she is only capable of less than a sedentary work capacity.

Dr. Ladopoulos, the claimant's treating psychiatrist, was deposed on December 18, 2015, and testified that he had been treating the claimant since May 6, 2015, and found that she had a marked partial psychiatric disability. The doctor's treatment consisted of prescribing Zoloft and monitoring the medication's effect. During a July 15, 2015, office visit the doctor completed a C-4.3 form and indicated that the claimant has a marked permanent psychiatric disability.

Dr. Miskin performed psychiatric evaluation of the claimant on September 5, 2013, and April 9, 2015, at the request of the carrier. In his April 9, 2015, report, Dr. Miskin concluded that the claimant has a mild permanent partial psychiatric disability and needed no further psychiatric care.

Dr. Lopez performed orthopedic examinations of the claimant for the carrier on February 24, 2014, July 28, 2014, and January 12, 2015. In his January 12, 2015, report, Dr. Lopez indicated that claimant had a class 4 severity ranking B permanent impairment of her cervical spine. Dr. Lopez found that claimant "is not to do any lifting, pushing or pulling greater than 20 pounds occasionally. She is capable of light duty work." Dr. Lopez was deposed on November 23, 2015, and testified that the claimant has a significant neck condition which requires fusion surgery, which the claimant had declined. Dr. Lopez also stated that the claimant needed an arthroscopic procedure for the left shoulder and a carpal tunnel release at the left wrist. The doctor then concluded that the claimant has a moderate disability and is at maximum medical improvement because she has declined surgery.

The claimant testified through a Spanish interpreter at the January 14, 2016, hearing. The claimant testified that she was born in Colombia on July 15, 1953, and she immigrated to the United States in 1989. She went to school in Colombia and graduated from college with a degree to work as a commercial secretary. After her schooling, she worked as a secretary for a telephone company and an electrical company. She had very little exposure to computers while she was in Colombia. She used a typewriter when she worked as a secretary. After immigrating to the United States, the claimant had no further schooling, and she only worked as a cleaner once she arrived. She has only worked jobs involving the cleaning of commercial offices, and has not performed any other type of work since immigrating. On cross-examination, the claimant testified that she does not know how to use a computer. When questioned by the WCLJ, the claimant stated that she took an English class in high school, which only consisted of one hour of instruction per week. The claimant confirmed that she cannot read English and speaks it very poorly.

After reviewing all the medical evidence, the WCLJ made a finding that the claimant has a severity "H" permanent medical impairment of the neck, as well as permanent impairments of the left elbow, both wrists, left shoulder and a psychiatric condition. Neither party has contested the WCLJ's findings regarding the permanent medical impairment. The WCLJ then considered the vocational factors and made a finding that the claimant has an 80% LWEC. Those findings are reflected in a decision filed January 20, 2016.

The claimant requested administrative review of the WCLJ decision, arguing that "[g]iven claimant's age of nearly 63, her lack of English, her lack of transferrable skills, her significant orthopedic and psychiatric injuries as conceded by the carrier's consultants...claimant suffers from a loss of wage earning capacity at a minimum of 81% or higher."

LEGAL ANALYSIS

"In order to fix the duration of benefits in a permanent partial disability case that is not amenable to a schedule award, the Board is obliged to determine a claimant's loss of wage-earning capacity. In so doing, the Board relies upon various factors in making that determination, including the nature and degree of the work-related permanent physical and/or mental impairment, work restrictions, and claimant's age" (Matter of Wormley v Rochester City Sch. Dist., 126 A.D.3d 1257 [2015][internal citations and quotation marks omitted]; see also WCL § 15[3][w]).

In this case, as found by the Board Panel majority, the claimant's lack of transferrable skills, low English proficiency, age (63), when considered with her significant permanent physical impairments and work limitations, support a finding that claimant has an LWEC of 85%.

Therefore, the Full Board finds a preponderance of the evidence supports a finding that the claimant has an 85% LWEC. This finding does not preclude the claimant from raising the issue of total industrial disability, which she may do by filing a RFA-1 (Claimant's Request for Further Action).

CONCLUSION

ACCORDINGLY, the WCLJ decision filed January 20, 2016, is MODIFIED to find that the claimant has an 85% LWEC. In all other respects the decision is affirmed. No further action is planned by the Board at this time.