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Case # G0274070
Date of Accident: 10/19/2010
District Office: Binghamton
Employer: Norwesco Inc.
Carrier: SPARTA Insurance Company
Carrier ID No.: W200752
Carrier Case No.: 003373001449WC01
Date of Filing of Decision: 12/02/2016
Claimant's Attorney: Fine, Olin & Anderman P.C.
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on November 15, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed March 29, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant was properly found to have a 75% loss of wage earning capacity (LWEC).

The Workers' Compensation Law Judge (WCLJ) concluded that the claimant has an 87.50% LWEC, made awards, and approved an attorney's fee of $6,000.00.

The Board Panel majority modified the WCLJ's decision to find that the claimant has a 75% LWEC. The majority modified awards and reduced the attorney's fee to $4,400.00.

The dissenting Board Panel member would affirm the WCLJ's finding that the claimant has a LWEC of 87.50%.

The claimant filed an application for Mandatory Full Board Review on April 28, 2016, requesting that the WCLJ's decision "be reinstated in its entirety."

The carrier filed a rebuttal on May 12, 2016, arguing that the Board Panel majority properly concluded that the claimant has a 75% LWEC.

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

FACTS

This claim was initially established for injuries to the head and neck sustained on October 19, 2010. The case was subsequently amended to include the low back and consequential depression.

The carrier filed an ERFA-2 (Request for Further Action by Carrier/Employer) on June 11, 2014, requesting a hearing to address the issue of permanency based on the medical report of its consultant, Dr. Hughes.

In a decision filed on June 30, 2014, the WCLJ directed the claimant to produce medical evidence on the issue of permanency.

In a decision filed on October 31, 2014, the WCLJ directed the depositions of Dr. Hughes, Dr. Goldberg and Dr. Phykitt on the issue of permanency.

At a deposition held on December 17, 2014, Dr. Phykitt testified that he first treated the claimant on November 2, 2010, for multiple injuries sustained after falling fifteen feet from a platform while at work. On physical examination, he found that the claimant was having difficulty with delayed recall and balance. He initially diagnosed the claimant with a concussion. He sees the claimant every six weeks, and most recently on December 10, 2014. He is currently treating the claimant for post-concussive symptoms, and back and neck pain. He is of the opinion that the claimant is at maximum medical improvement and claimant has an 80% permanent partial disability (PPD). Dr. Phykitt testified that he is not familiar with the Board's medical impairment guidelines and could not assess the claimant's class and severity ranking for permanency. When asked to justify his opinion that the claimant has an 80% PPD, he testified that due to his concussion the claimant has a low ability to concentrate after one hour, gets very overwhelmed mentally and emotionally and has trouble multi-tasking. With respect to his back and neck injuries, he is limited in his ability to bend, lift, and stand for a prolonged period, all of which would interfere with his ability to work. In Dr. Phykitt's opinion, the claimant is limited to lifting ten pounds and can stand for only one hour. The claimant has limited energy to do anything other than some limited activities with his family. If the claimant is able to work it would have to be very light, sedentary duty, and of short term duration.

On cross-examination, Dr. Phykitt indicated that he could not comment with respect to how much the claimant could push and pull, other than saying he could do so in short durations, that the claimant could only drive for short distances due to his difficulty with sitting for any period longer than thirty minutes, and he was limited to walking about 100 yards. With respect to the claimant's activities of daily living, Dr. Phykitt indicated that he has not specifically asked the claimant if he could dress or wash himself, and assumed that he could toilet himself and feed himself. The claimant knows where he is and can relate to things, but is easily distracted, and he would defer to Dr. Goldberg with respect to these issues and his psychiatric disability. The claimant is oriented to time, place and person in Dr. Phykitt's opinion. The claimant is able to function on a computer. He has basic familiarity with the 2012 Board Medical Guidelines only.

At a deposition held on January 6, 2015, Dr. Goldberg testified that he is a clinical psychologist who treated the claimant following his injury of October 19, 2010. He first saw the claimant on or about February 15, 2011, and last saw the claimant on December 31, 2014. On August 19, 2014, he sent a report to the Board on the issue of maximum medical improvement. The deposition was stopped when it was discovered that several of Dr. Goldberg's reports had not been filed with the Board. The parties agreed that the deposition of Dr. Goldberg would be re-scheduled once the medical reports were filed.

At a deposition held on January 8, 2015, the carrier's consultant, Dr. Hughes, testified that he is a board certified neurologist who is licensed by the Workers' Compensation Board to perform IMEs. He performed an IME of the claimant on April 2, 2014, and submitted his report on April 7, 2014, and a supplemental report on April 25, 2014. Overall, Dr. Hughes saw the claimant on five separate occasions. Dr. Hughes opined that the claimant was at maximum medical improvement, and was permanently partially disabled. When asked about his degree of disability, Dr. Hughes testified that claimant was in Class 3, with a severity ranking of L for the head injury, Class 3, with a severity ranking of B for the neck injury, and Class 3, with a severity ranking of B for the back injury. The claimant has a moderate limitation with respect to his low back and neck injuries. With respect to the claimant's head injuries, Dr. Hughes felt that his motor systems and his cranial nerves were normal. He was not disoriented with respect to time, place and person. He could perform activities of daily living, and his restrictions included no walking, standing or sitting for more than thirty minutes and no lifting over thirty pounds. The claimant was capable of working a sedentary job and driving up to one hour at a time. He can use a computer to perform simple tasks. On re-direct, Dr. Hughes indicated that his final opinion was that claimant could work light duty with restrictions of no sitting for more than fifteen minutes, no standing for more than twenty minutes, no walking for more than fifteen minutes and driving for no more than one hour.

On cross-examination, Dr. Hughes indicated that a CT of the thorax, abdomen and pelvis was normal, and an MRI of the brain was also normal. The claimant complained of moderate to severe headaches that would last for hours, four times a day, which resulted in nausea and photophobia. He also had moderate to severe neck pain, constant ringing in his ears and speech difficulty. He had episodes of numbness that extended to his arms and he vomited daily. The claimant was taking meclizine (for dizziness), Tylenol, muscle relaxers and sleeping pills.

At a deposition held on January 15, 2015, Dr. Goldberg testified that the claimant was referred to him by Dr. Phykitt due to cognitive personality changes, and that he first saw the claimant on February 15, 2011. At that time, the claimant complained of continuing emotional instability, lack of ability to concentrate and rapid loss of mental and physical energy. Dr. Goldberg's initial impression was personality and cognitive changes secondary to post-concussion syndrome (PCS) and possible post-traumatic stress disorder (PTSD). Claimant's medical history did not indicate a prior psychiatric illness or treatment. Dr. Goldberg saw the claimant intermittently thereafter, with the last visit being on December 31, 2014. He estimated seeing the claimant on 25 occasions. The claimant has reached maximum medical improvement with respect to his emotional status and cognitive status. Dr. Goldberg testified that the claimant is 100% disabled from being able to do full-time work, but is able, "under certain circumstances, to do some amount of work on a limited basis" (deposition, Dr. Goldberg, 1/15/15, p. 10-11). Claimant should work independently without distractions and without the need to multi-task. Claimant should be able to take breaks every fifteen minutes. Claimant would have to work "less than half of full time" (p. 11). On re-direct, Dr. Goldberg testified that from a cognitive standpoint, the claimant's activities of daily living are minimally impacted.

On cross-examination, Dr. Goldberg indicated that he has seen little change in neuropsychological testing performed after his initial office visit with the claimant, that claimant's global assessment of functioning (GAF) score, which measures his level of psychiatric danger, was presently a 70, and major depression secondary to brain injury was added to his diagnosis. The claimant's depression is controlled by medication, but is not in remission. Claimant is taking Citalopram and Seroquel. Claimant has meaningful interpersonal relationships, but cannot maintain concentration and attention, which affects his ability to work. The claimant is disabled due to his cognitive impairment, not his psychiatric condition. Dr. Goldberg conceded that the last time he performed any objective testing of the claimant's neurological condition was in June 2014. The results of those tests were consistent with his clinical findings. Dr. Goldberg felt that the claimant had a class 3L impairment under the 2012 Impairment Guidelines. He believes the claimant's cognitive disability has stayed relatively consistent, but he has seen some improvement with the emotional component. The claimant could return to work with the restrictions previously testified to, but Dr. Goldberg was doubtful that a job existed that the claimant could perform within his restrictions. For example, the claimant would not be able to work as a greeter at Wal Mart due to his work-related disabilities. He deferred to Dr. Phykitt with respect to any physical limitations that the claimant would have with respect to working a job as a greeter. He could, however, possibly do work stuffing envelopes as long as the task was limited to ten minute intervals. Dr. Goldberg conceded that he could not definitively tell if the claimant could perform a certain job task until he actually attempted them.

In a decision filed on February 12, 2015, the WCLJ directed the deposition of Dr. Lax on the issue of permanency.

At a deposition on April 6, 2015, Dr. Lax testified that he is Board certified in occupational medicine and that he first started to treat the claimant on July 10, 2013. He sees the claimant every three months and last saw him on December 31, 2014. Dr. Lax completed a C-4.3 following a September 24, 2013, examination of the claimant. He diagnosed the claimant with low back pain with sciatica, cervical disc disease and post-concussive syndrome with physical, cognitive and emotional sequelae. Dr. Lax indicated that his objective findings suggested nerve impingement or nerve involvement on the left side. A February 19, 2014, MRI of the lumbar spine was reviewed, which revealed significant disc space narrowing, some disc bulging and some impingement of the disc on the spinal cord and nerves exiting the spinal cord at multiple levels. An MRI of the cervical spine was also performed on February 19, 2014, which revealed disc and bony degenerative changes at multiple levels resulting in some potential for spinal cord impingement and impingement of the neural foramen at multiple levels, particularly at C5 and C6. Claimant also demonstrated some issues with his balance. Dr. Lax testified that the claimant's cognition and memory seemed to be impaired, and he seemed depressed and expressed suicidal ideation. Based on his examination of the claimant, Dr. Lax was of the opinion that the claimant is not capable of returning to any type of employment. Dr. Lax cited very limited ability with respect to sitting, standing, walking and lifting, in reaching his conclusion concerning the claimant's ability to return to work. He also pointed to the claimant's mental health issues, and in particular, a significant level of depression including suicidal ideation, and issues with basic cognition and memory and thought organization. The claimant has reached maximum medical improvement and his condition is permanent.

On cross-examination, Dr. Lax testified that the claimant is capable of performing activities of daily living such as self-care, personal hygiene, and toileting without supervision, but is very slow at them. The claimant is capable of driving an automobile for about thirty minutes. The claimant is not currently taking any medications. The claimant had normal strength in his arms and in his legs upon testing. Two MRIs of the claimant's head revealed non-specific findings. The claimant informed Dr. Lax of some sexual dysfunction he was encountering. Dr. Lax opined that the claimant would not be a good candidate for Access-VR as he is not capable of performing work in a competitive job market, but would not be opposed to claimant discovering what options he might have. The claimant suffers from headaches, sensitivity to light, tinnitus and vertigo. He has a lot of difficulty relating to other individuals from an emotional standpoint. He does not need to be institutionalized. The claimant is capable of composing and reading emails, and is able to comprehend matters and express himself.

Claimant testified on February 9, 2015, that at the time of his injury he was a second shift supervisor in a plastics manufacturing company. He worked in that position for 15 years. Prior to that, he worked as a tractor trailer driver. He also served in the military. He earned a two-year degree from Tompkins Cortland Community College in construction technology. He uses a computer and has an e-mail account.

Claimant had filed a VDF-1 (Loss of Wage Earning Capacity Vocational Data Form) July 24, 2013, indicating that he is able to read, write, and speak English well.

The claimant's attorney filed an OC-400.1 (Application for a Fee by Claimant's Attorney or Representative) on April 24, 2015, requesting a fee in the amount of $6,000.00, based on work he performed on the claimant's behalf.

In an amended decision filed May 1, 2015, the WCLJ classified claimant permanently partially disabled with a brain condition of Q severity, a cervical spine condition of E severity and lumbar spine condition of F severity. The WCLJ found that claimant is capable of performing work involving less than sedentary physical demands. Factoring in the vocational factors of age (59 years old), education, English proficiency and work experience, the claimant has a LWEC of 87.50% and is entitled to wage loss benefits not to exceed 475 weeks. The WCLJ made awards from February 10, 2015, to April 22, 2015, and continuing, at the weekly rate of $512.51, and approved a $6,000.00 attorney's fee.

The carrier requested administrative review of the WCLJ's decision, contending that "claimant has no more than a 68% permanent disability and loss of wage earning capacity."

The claimant requested administrative review of the WCLJ's decision, arguing that he should be found to be permanently totally disabled. The majority properly denied claimant's request for administrative review on the ground that it was untimely.

LEGAL ANALYSIS

Loss of Wage Earning Capacity

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 loss of wage earning capacity 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 loss of wage earning capacity is a legal determination. While the impairment rating may coincidentally be the same percentage as the ultimate finding of loss of wage earning capacity, the medical impairment rating is not to be used as a direct translation to loss of wage earning capacity (see e.g. Matter of Patchogue-Medford School Dist., 2011 NY Wrk Comp 40803044).

In the present case, the carrier's consulting neurologist, Dr. Hughes, credibly opined that pursuant to the Board's 2012 Impairment Guidelines, claimant had a Class 3, B severity ranking permanent impairment of his lumbar spine and cervical spine. Dr. Hughes' impairment findings are consistent with his clinical findings on examination of the claimant, as well as the Impairment Guidelines. Dr. Lax failed to provide specific justification for the elevated findings set forth in his C-4.3 with respect to the claimant's neck (E severity ranking) and back (F severity ranking) conditions under the 2012 Impairment Guidelines. Dr. Phykitt testified that he is not familiar with the Board's Impairment Guidelines and could not assess the claimant's class and severity ranking for permanency.

Both Dr. Hughes and Dr. Goldberg concluded under the 2012 Impairment Guidelines, claimant had a Class 3, L severity ranking permanent impairment as the result of his head injury. Dr. Lax found that claimant's head injury resulted in a permanent impairment of a Q severity ranking, but the doctor's clinical findings do not support that conclusion. The 2012 Impairment Guidelines state with respect to brain impairments of severity rankings F-L that claimant "[c]an perform all activities of daily living independently, but due to mild cognitive or memory deficits, may need to use compensatory strategies or devices such as multiple written reminders, alarms or digital devices; or may sometimes require more time than normal to complete activities of daily living; or may use occasional reminders, prompts, or minor assistance by others as a compensatory strategy, but is not dependent on others. [...] The cognitive or memory deficits limit ability to perform some types of functions, for example, mild attention deficits may preclude work in a busy, multi-tasking environment." (2012 Impairment Guidelines, p. 109). Dr. Goldberg testified that claimant could do some amount of work on a limited basis, but should work without distractions and without the need to multi-task. Dr. Goldberg also found that claimant's cognitive restrictions only minimally affected his activities of daily living. The 2012 Impairment Guidelines state with respect to brain impairments of severity rankings Q-S that claimant's "[j]udgment, cognitive, or memory deficits result in impairment sufficient so that assistance or supervision is regularly required in order to perform some activities of daily living" (2012 Impairment Guidelines, p. 109). The record does not support a finding that claimant's condition met the requirements to finding a Q severity impairment based on his head injury and the preponderance of the medical evidence supports a finding that claimant had a Class 3, L severity ranking permanent impairment with respect to his head.

With respect to functional loss, the medical record as developed indicates that the claimant has limitations with respect to sitting, standing, walking and exertional capacity, is incapable of returning to his prior employment and would be limited in his ability to return to work due to his cognitive and memory issues.

With respect to the vocational factors assessed in determining a claimant's LWEC, only the claimant's age would be considered an aggravating factor. Claimant indicated that he is able to read, write, and speak English well, and obtained a degree from a two year college.

The Full Board finds, upon a review of the evidence of record, that the claimant has a 75% LWEC.

Attorney's Fees

Pursuant to WCL § 24, all attorney fee requests must be approved by the Board. Before approving a fee request, the Board must consider the extent of the services rendered and the financial status of the claimant. Factors relevant in determining the value of the legal services rendered include "the nature and extent of the services, the actual time spent, the necessity therefor, the nature of the issues involved, the professional standing of counsel, and the results achieved" (Jordan v Freeman, 40 AD2d 656 [1972] [citation omitted]). In addition, the fee must not be based solely upon the amount of compensation awarded (see 12 NYCRR 300.17[f]). No fee in excess of $450 shall be awarded to a claimant's attorney if the OC-400.1 is not accurately completed, including the time spent on the services rendered (12 NYCRR 300.17[d][1], [e], [h]; but see Matter of Pavone v Ambassador Transp., Inc., 26 AD3d 645 [2006]).

The Full Board finds, upon a review of the evidence of record, that the attorney's fee awarded should be reduced to $450.00 based on the defective OC-400.1 submitted to the Board. The OC-400.1 filed by the claimant's attorney does not comply with 12 NYCRR 300.17(d)(1), as it does not specify the amount of time spent on any particular task, but instead provides generalized descriptions of the type of work performed on claimant's behalf over a lengthy period of time. Under the circumstances, the Board Panel finds that the OC-400.1 did not comply with the requirement in 12 NYCRR 300.17(d)(1) that the fee application be accurately completed, and therefore, no attorney's fee in excess of $450.00 may be awarded.

CONCLUSION

ACCORDINGLY, the WCLJ's amended decision filed May 1, 2015, is MODIFIED to find that claimant has an "L" severity permanent impairment to the head, a "B" severity permanent impairment to the cervical spine, a "B" severity permanent impairment to the lumbar spine, and depression. Claimant is able to perform work involving sedentary physical demands. Claimant has a 75% LWEC and is entitled to wage loss benefits not to exceed 400 weeks. The carrier is to continue payments at a $439.29 permanent partial disability rate. The attorney's fee is modified to $450.00. The decision is AFFRIMED in all other respects. The case is continued.