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Workers' Compensation Board

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Case # G0761641
Date of Accident: 03/14/2013
District Office: NYC
Employer: Metropolitan Hospital
Carrier: Health & Hospitals Corp. CNY
Carrier ID No.: W843502
Carrier Case No.: 08191312166
Date of Filing of Decision: 09/06/2016
Claimant's Attorney: Alan M. Cass & Associates
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on July 19, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed March 10, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether a claimant with schedulable and non-schedulable impairments arising out of the same accident, and who has returned to work at pre-injury wages, may receive a schedule loss of use (SLU) award and a permanent partial disability classification at the same time.

The Workers' Compensation Law Judge (WCLJ) classified the claimant with a permanent partial disability under Workers' Compensation Law (WCL) § 15(3)(w), found that the claimant has a permanent lumbar injury with a severity ranking of A, a permanent cervical injury with a severity ranking of A, continuing knee and shoulder injuries, and an overall loss of wage earning capacity (LWEC) of 60%. The WCLJ also specifically concluded that the claimant had returned to work earning pre-injury wages and was therefore not currently entitled to continuing indemnity benefits.

The Board Panel majority rescinded the permanent partial classification and LWEC finding and remanded the case to the trail calendar for further development of the record to establish both claimant's SLU to her left arm and right leg, as well as her overall LWEC due to her permanent partial disability. The Board Panel majority found that assuming that claimant is continuing to earn pre-injury wages at the time of the classification, she is entitled to payment of the schedule in a lump sum pursuant to WCL § 25(1)(b) upon request. Thereafter, if claimant becomes entitled to a permanent partial disability award pursuant to her classification, the self-insured employer (SIE) is entitled to a credit for all payments made pursuant to the schedule award.

The dissenting Board Panel agreed with the permanent partial classification and LWEC finding and remanded the case to the trail calendar for further development of the record on the issue of permanency, but would find that "there should not be a possible determination that the claimant may receive both a schedule and a classification for injuries arising out of the same accident."

The SIE filed an application for Mandatory Full Board Review on April 11, 2016, arguing that there should not be a possible determination that the claimant may receive an SLU and a classification for injuries arising out of the same accident. The SIE contends that an SLU award and a classification cannot exist simultaneously under WCL § 15(3).

The claimant filed a rebuttal on May 3, 2016, requesting that the decision of the Board Panel majority be affirmed.

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

FACTS

This case is established for injuries to the right ankle, right knee, left shoulder, back, neck and head that occurred as a result of a work-related accident on March 14, 2013. The case was subsequently amended to include depressive disorder.

The claimant's treating physician, Dr. Wright, filed C-4.3s (Doctor's Report of MMI/Permanent Impairment) for treatment on March 28, 2014, and May 16, 2014, finding the claimant to have a 40% SLU of the left arm and a 50% SLU of the right leg. Dr. Wright did not provide an opinion regarding the injuries to the claimant's neck and back.

The SIE's consultant, Dr. Mills, filed an IME-4 from an examination on September 3, 2014, finding the claimant to have reached maximum medical improvement (MMI). The claimant was found to have a permanent lumbar injury with a severity ranking of A and a permanent cervical injury, also with a severity ranking of A. Continuing impairment of the right knee, right ankle, and left shoulder was also found, along with functional restrictions based on the knee, ankle, and shoulder injuries. Despite the seriousness of the knee, ankle, and shoulder injuries, no SLU assessment was completed because of Dr. Mills' opinion that the neck and lumbar injuries should be classified. Dr. Mills had filed a previous IME-4 report based on an examination on December 23, 2013, which found that the neck and lumbar issues had "resolved."

Dr. Wright testified at a deposition held on December 11, 2014, in accordance with the findings in his report regarding the left arm and the right leg. Dr. Wright has never treated the claimant for her back or her neck injuries.

Dr. Mills testified at a deposition held on December 16, 2014, in accordance with the findings in his most recent report. He explained that he examined the neck and back to the exclusion of the other injuries because he felt the neck and back would result in a classification. Dr. Mills further explained that when he noted "resolved" in his previous report, he did not mean that there were no more symptoms. Rather, he meant "that there's nothing else to do, no further treatment is recommended, but one can still have symptoms or permanency."

In a decision filed March 11, 2015, the WCLJ classified the claimant with a permanent partial disability under WCL § 15(3)(w), found that the claimant has a permanent lumbar injury with a severity ranking of A, a permanent cervical injury with a severity ranking of A, continuing knee and shoulder injuries, and an overall LWEC of 60%. The WCLJ found that because the claimant had returned to work earning pre-injury wages, she was not currently entitled to continuing indemnity benefits, but may be entitled to benefits should she earn less than full wages in the future.

Both the claimant and the SIE sought administrative review of the WCLJ's March 11, 2015, decision.

LEGAL ANALYSIS

The Full Board finds, upon review of the evidence of record, that the claimant may not receive a schedule loss of use award and a classification award simultaneously in this case. The 2012 Permanency Guidelines provide for two types of permanency evaluations: (1) schedule awards for the impairment of extremities, loss of vision, loss of hearing or facial disfigurement, and (2) non-schedule classification as a permanent partial or total disability. Awards are directed for schedule injuries based on numerous factors provided in the Guidelines. Section 1.5 also states that "[n]o 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." An exhaustive list of circumstances is given for conditions that would otherwise be the subject of a schedule to be instead classified. Nothing in the Guidelines expressly permits, or even suggests, that a claimant is entitled to both types of determinations for injuries suffered in the same accident. The Guidelines provide the comprehensive manner in which to handle the two types of injuries. WCL § 15(3) also does not permit the award of both a schedule and classification for injuries suffered in the same accident. A claimant who had returned to work at full wages loses nothing as the cap weeks set forth therein do not run while the claimant is not collecting indemnity benefits. A claimant not experiencing any loss in wages earned despite existing physical impairment may not be collecting any benefits, but retains the right to collect benefits for the same overall amount of time at some point in the future, should he or she experience wage loss caused by the established injuries. The virtual banking of cap weeks is the benefit received under such circumstances and is the benefit permitted by WCL § 15(3) and the Guidelines. It is a real benefit and it vests with the claimant upon classification.

The Full Board further finds that "[n]either side has produced medical opinions on how the neck, back, knee, ankle and shoulder symptoms combine or overlap in the manifestation of symptoms or the causation of functional limitations." Therefore, the record is not sufficiently developed on whether claimant's injuries are amenable to classification or SLU awards, and to what degree. The findings of MMI and permanency are therefore rescinded, without prejudice, and the case is remanded for further development of the record.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed March 11, 2015, is MODIFIED to rescind the permanent partial classification and LWEC finding, and to return the case to the trial calendar for further development of the record on the issue of whether claimant's injuries are amenable to classification or SLU awards, and to what degree. The decision is AFFIRMED in all other respects. The case is continued.