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Workers' Compensation Board

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Case # G0542084
Date of Accident: 12/06/2011
District Office: NYC
Employer: St Lukes/Roosevelt Hospital
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: FJPSLK11-1513
Date of Filing of Decision: 09/06/2016
Claimant's Attorney: Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano, LLP
Panel: Kenneth J. Munnelly


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 29, 2016.


The issue presented for Mandatory Full Board Review is whether the claimant's loss of wage earning capacity (LWEC) should be reassessed.

The Workers' Compensation Law Judge (WCLJ) determined that the claimant had already been found to have a 0% LWEC, and thus she was not entitled to any further compensation benefits.

The Board Panel majority rescinded the finding and directed that the LWEC determination be reconsidered. The Board Panel majority also directed a tentative award of benefits at a partial disability rate.

The dissenting Board Panel member would affirm the WCLJ, as the 0% LWEC was not the subject of a timely application for administrative review, was not a mistake of fact or process, and thus should remain in effect.

The carrier filed an application for Mandatory Full Board Review on April 19, 2016, arguing that the claimant failed to file a timely application for administrative review, and that the Board abused its discretionary authority by directing reconsideration of the issue of LWEC.

The claimant filed a rebuttal on May 13, 2016, asking that the majority opinion be upheld.

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


This claim is established for an injury to the claimant's back sustained in the course of her employment as a nurse on December 6, 2011. The average weekly wage has been set at $466.05, and the claimant has received indemnity benefits for several periods of lost time at varying rates.

At a July 11, 2014, hearing, among other things, the parties were directed to develop the record regarding degree of further causally related disability and causally related neck. Awards were held in abeyance after December 6, 2013, to allow the parties to produce additional evidence regarding intermittent lost time and employer reimbursement (see EC-23, 7/16/2014).

On September 23, 2014, treating orthopedic surgeon, Dr. Ravich, testified that he has been treating the claimant regularly since December 13, 2011. The claimant has a significant disc herniation at L3-4, which is abutting the exiting right nerve root, and a broad based disc herniation at L4-5. She also has moderate degenerative changes. The claimant has had extensive conservative treatment. As of the date of the deposition, Dr. Ravich had most recently treated the claimant on May 28, 2014. She had continuing complaints and positive examination findings consistent with her injuries, yet the claimant had been released to return to work with restrictions. Although the doctor had not yet performed a formal permanency evaluation, he believed that the claimant has a permanent partial disability of a mild to moderate degree.

During cross-examination, Dr. Ravich clarified that he had previously assessed the claimant with a temporary total disability, and only first reduced her disability level as of January of 2014. The reduction was based upon the claimant's ability to adjust her activities, manage her movements, perform some work activities, and reduce her medication intake.

On September 26, 2014, treating orthopedic surgeon, Dr. Merola, testified that he first examined the claimant in April of 2013. She was referred to him by Dr. Ravich for the purpose of determining whether she was a surgical candidate. Based upon the claimant's complaints and his evaluation, Dr. Merola assessed a temporary total disability at that time. In November of 2013, Dr. Merola felt the claimant's condition had improved, and thus he reduced her disability level to mild. As of the date of his testimony, the November 2013 visit was Dr. Merola's most recent evaluation of the claimant.

The carrier's consulting orthopedic surgeon, Dr. Pitman, testified on September 29, 2014, that he has examined the claimant on several occasions at the carrier's request. Initially, he found her to have a temporary total disability. Thereafter, he decreased the claimant's disability level to marked partial based upon his opinion that her condition had slightly improved. In addition to her pain complaints, the doctor noted that the claimant reported bladder and bowel complications. Dr. Pitman had suggested the claimant consider surgery.

During cross-examination, Dr. Pitman agreed that after his April 2, 2013, examination, he felt that the claimant's condition had worsened. He did not increase her disability level to total because he felt it was difficult to define a total disability.

At a hearing held on October 22, 2014, the WCLJ awarded one week of intermittent lost time for the period from December 6, 2013, through October 23, 2014, and, among other things, directed the parties to produce medical evidence of permanency.

On December 30, 2014, Dr. Merola prepared a C-4.3 (Doctor's Report of MMI/Permanent Impairment) on the claimant's behalf. Therein, he used Table 11.1, and assessed the claimant with a lumbar impairment severity ranking of 4H. He also placed numerous restrictions on the claimant, and indicated that she should work in a less than sedentary capacity. In his attached narrative report, Dr. Merola indicated that the claimant "falls under the category of 100% total disability from all work and duties particularly given the fact that she has tried to work and finds that work and work-related activities are essentially impossible for her to do..." (see Doc ID # 239025333). The doctor indicated that if the claimant were to have any further neurological deterioration, she might want to consider surgery.

On December 23, 2014, Dr. Ravich prepared a C-4.3 indicating that the claimant is totally disabled from her usual employment. In his attached narrative, the doctor indicated that the claimant is unable to work as a nurse.

On January 5, 2015, the claimant was examined by consulting physician, Dr. Nathan, at the carrier's request. In his associated report, Dr. Nathan indicated, among other things, that the claimant has a permanent impairment. Using lumbar impairment table 11.1, Dr. Nathan assessed the claimant with a severity ranking of 4F. Functionally, the doctor assessed the claimant as able to perform very heavy work, noting that she was performing her usual occupation at that time.

At a hearing held on January 21, 2015, the WCLJ credited Dr. Nathan's opinion over that which was provided by the treating physicians. The WCLJ found that the claimant's demonstrated ability to work at her pre-accident level eliminated all credibility from the treating physicians' opinions that the claimant would be unable to do so. The WCLJ found the claimant to have a 4F severity level impairment of her lumbar spine, and a 0% LWEC in light of the fact that she was working without lost wages. She was noted to be entitled to wage loss benefits not to exceed 225 weeks. The findings are contained in the WCLJ decision filed on January 26, 2015. The decision was not the subject of any application for administrative review.

On January 27, 2015, the claimant completed a leave of absence form for her employer. She indicated that she required leave due to a work-related serious health condition. She indicated that she last worked on January 27, 2015. The final page of the form was completed by Dr. Ravich on February 10, 2015. Therein, he indicated that the claimant was treated on January 27, 2015, and that he has found her to be unable to perform her job functions. He was unable to state when the claimant might be able to resume her employment. On March 24, 2015, Dr. Ravich assessed the claimant with a 50% disability.

On May 14, 2015, the claimant testified that she last worked on January 22, 2015. She had been working in the same position that she had been in at the time of her accident, in spite of the employer's promises to provide her with a lighter duty position. While working, she had numerous difficulties, and often had to ask for assistance. The claimant believed that she had also fallen at work on January 27, 2015, at the end of her shift. Her leg gave out due to her causally related complaints, causing the fall. She has since treated with her physicians, and has undergone an epidural steroid injection. She completed documents seeking a leave of absence.

During cross-examination, the claimant testified that after she fell, she sat in the breakroom until it was time to leave. She reported having fallen to someone named Jo. She did not seek immediate medical attention because she expected that the treatment that would be offered to her would be no different from that which she had been receiving all along. She still had her pain medications, and she took them as needed.

At the conclusion of the claimant's testimony, the WCLJ noted that the employer had failed to produce a witness, and precluded it from doing so. The claimant's counsel then sought awards. The carrier objected due to the claimant's failure to produce medical evidence that her separation from employment was due to her disability. The carrier also argued that there was no medical evidence that the claimant's condition had changed since the date she was assessed with a 0% LWEC. The WCLJ decided that the claimant had failed to produce medical evidence of a change in her condition. As such, the claim was closed on prior findings, and no further awards were directed. The findings are contained in the WCLJ decision filed on May 20, 2015.


"The classification of injuries is a factual determination within the sole province of the Board ..." (Matter of McNeil v Geary, 105 AD2d 539 [1984]). The Board has the broad authority to "reclassify a disability upon proof that there has been a change in condition, or that the previous classification was erroneous and not in the interest of justice" (Workers' Compensation Law § 15[6-a]).

For a claimant with a date of accident/disablement on or after March 13, 2007, Workers' Compensation Law (WCL) § 15(3)(w) limits the number of maximum benefit weeks payable for a non-schedule permanent partial disability. The term "loss of wage earning capacity" was introduced in the 2007 amendment to WCL § 15(3)(w) and has subsequently been defined by the Board (Matter of Longley Jones Management Corp., 2012 NY Wrk Comp 60704882; Matter of Buffalo Auto Recovery, 2009 NY Wrk Comp 80703905). Specifically, "when assessing loss of wage earning capacity the Board should consider medical evidence concerning the nature and degree of the work-related permanent physical and/or mental impairment, work restrictions, a claimant's age, and any other relevant factors" (Matter of WJ Bokus Industries, Inc., 2015 NY Wrk Comp G0393087).

The Appellate Division has affirmed the Board's approach on this issue and has also recently stated that for WCL 15(3)(w) purposes, functional impairment, and vocational and other related factors, such as age and education, "are appropriately taken into account with respect to loss of wage-earning capacity only as they are relevant to the duration of a claimant's permanent partial disability benefits" (Matter of Baczuk v Good Samaritan Hosp., 132 AD3d 1033 [2015]).

Any determination as to LWEC must be consistent with the provisions of the Workers' Compensation Law. There is a distinction between impairment and disability. Impairment is a medical condition while a claimant's disability or LWEC is a legal determination. While the impairment rating may coincidentally be the same percentage as the ultimate finding of LWEC, the medical impairment rating is not to be used as a direct translation to LWEC (see e.g. Matter of Patchogue-Medford School Dist., 2011 NY Wrk Comp 40803044).

When calculating the LWEC of a permanently partially disabled (PPD) claimant pursuant to WCL § 15(3)(w), "it is not appropriate to draw a dispositive distinction between working and non-working claimants" (Matter of Longley Jones Management Corp., 2012 NY Wrk Comp 60704882). For all claimants "the Board relies upon various factors, including 'the nature and degree of the work-related permanent physical and/or mental impairment, work restrictions, [and] claimant's age'" (Matter of Cameron v Crooked Lake House, 106 AD3d 1416 [2013], quoting Matter of Buffalo Auto Recovery, 2009 NY Wrk Comp 80703905). "This does not mean that a PPD claimant's wages at the time of classification are irrelevant. They are an important factor that must be considered and weighed by the WCLJ in determining a claimant's actual loss of wage earning capacity" (Longley Jones Management Corp., 2012 NY Wrk Comp 60704882).

Here, the physicians all agree that the claimant has a significant permanent disability due to her causally related back injury. Moreover, the record demonstrates that the claimant's wage loss after January of 2015 was causally related to her permanent disability. While the claimant has been unable to demonstrate a medical change in condition since having been classified, she may not have suffered one. Instead, as she has reasonably and credibly explained, she has had a causally related medical disability all along, has attempted to keep working, but has ultimately been physically unable to continue. If the claimant had not been erroneously classified with a 0% LWEC, then she would have been awarded continuing benefits after she stopped working in January of 2015.

In assessing the claimant's LWEC, the WCLJ misapplied both the facts and the law. The facts demonstrate that the claimant performed a physically demanding job for several years leading up to her injury, and that her treating physicians had credibly suggested that she permanently refrain from performing such physical tasks. While the WCLJ found that the treating physicians' medical opinions lacked credibility because the claimant testified that she remained able to work, such finding ignored the claimant's testimony that it was difficult for her to perform her work tasks and that she often needed help, and failed to consider the likelihood that the claimant's performance of her work activities was against medical advice and dangerous for her. Even if the Board were to agree with the WCLJ decision to discount the medical opinions of the treating physicians, the carrier's consulting physician also confirmed that the claimant has a significant permanent back injury. Accordingly, the evidence does not support a finding of a 0% LWEC. Additionally, the law dictates that the WCLJ consider vocational, educational, and other relevant LWEC factors in determining LWEC, yet the record is devoid of any such consideration.

Although the claimant failed to appeal the WCLJ decision filed on January 26, 2015, that found her to have a 0% LWEC, the law expressly authorizes the Board to re-classify disabilities upon proof that the prior classification was erroneous and not in the interest of justice (WCL &sec 15[6-a]). The re-evaluation of claimant's LWEC, in accordance with applicable law, is an appropriate, just and warranted exercise of the Board's continuing jurisdiction.

Therefore, the Full Board finds, upon review of the record and based upon a preponderance of the evidence, that the previous finding of an LWEC of 0.00% is rescinded pending further development of the record as to an appropriate LWEC.

Turning to the issue of proper awards subsequent to the claimant's separation of work as of January 27, 2015, the Full Board finds sufficient evidence in the record to conclude that the claimant's permanent partial disability caused her loss of earnings. This determination is supported by the claimant's credible testimony, the leave of absence application certified by Dr. Ravich, and the entirety of the medical evidence which indicates a limited exertional ability based upon the permanent impairment. Based upon the foregoing, and consistent with the medical reports submitted by Dr. Ravich, the Full Board finds that awards are to be made at a tentative rate of $155.35, reflective of a 50% disability, pending a final determination as to loss of wage earning capacity.


ACCORDINGLY, the WCLJ decision filed on January 26, 2015, is MODIFIED by rescinding the finding that the claimant has a 0.00% LWEC and substituting a finding that the claimant has an LWEC greater than 0.00%, but that further development of the record is required to determine an appropriate LWEC. The WCLJ decision filed on May 20, 2015, is MODIFIED to reflect that awards are to be made at a tentative rate of $155.35 pending a final determination as to LWEC. The case is restored to the first available hearing calendar for further development of the issue of LWEC with the claimant's testimony. The parties are to produce any and all evidence that they wish to be considered on this issue at or prior to the next hearing. The WCLJ is to rule on the issue based upon a completed record. Case is continued.