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Workers' Compensation Board

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Case # G0946553
Date of Accident: 12/26/2014
District Office: Buffalo
Employer: Catholic Health System, Buffalo
Carrier: Indemnity Ins. of N America
Carrier ID No.: W112502
Carrier Case No.: C494C4276349
Date of Filing of Decision: 11/28/2016
Claimant's Attorney: Fiordaliso, Robert A.
Panel: Kenneth J. Munnelly


The Full Board, at its meeting on October 18, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on April 25, 2016.


The issue presented for Mandatory Full Board Review is degree of disability after July 23, 2015.

The Workers' Compensation Law Judge (WCLJ) found that the claimant was temporarily totally disabled after July 23, 2015.

The Board Panel majority affirmed the WCLJ's decision.

The dissenting Board Panel member would find that the claimant has a moderate partial disability.

On May 25, 2016, the carrier filed a request for Mandatory Full Board Review arguing that because the claimant's treating physicians did not examine the claimant personally, the Board has to credit the opinion of its consulting physician.

The claimant filed a rebuttal requesting that the majority opinion be adopted by the Full Board.

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


Claimant was injured at work on December 26, 2014, when she slipped and fell. This claim is established for the back and neck with an average weekly wage of $473.05. Awards for the period prior to February 5, 2015, were held in abeyance. Benefits were awarded at the temporary total rate from February 5, 2015, to July 23, 2015, and the carrier was directed to continue payments from July 23, 2015, forward at the tentative partial rate of $157.68 pending development of the record on the issue of degree of disability.

The claimant's treating physician, Dr. Calabrese, was deposed on October 28, 2015, and testified that his office began treating the claimant on March 19, 2015, and she was last seen on October 22, 2015. On March 19, 2015, the claimant was seen by Dr. Hart, a physician in Dr. Calabrese's office. The claimant presented to Dr. Calabrese's office with complaints of pain in the neck and mid and low back. The claimant also reported having dizziness, headaches and stiffness. On examination, the claimant had decreased range of motion at the cervical and lumbar spine, trigger points on the thoracic spine and tenderness. The claimant was diagnosed with a lumbar spine strain with disk herniation, mild spasms and post traumatic headaches. The doctor's office sent the claimant for physical therapy three times a week with a focus on the lumbar spine. The claimant was not prescribed medications because she was pregnant at the time of the work-related accident. A CT scan showed no intracranial findings. The claimant had an MRI of the lumbar spine taken on October 16, 2015, which showed a central disk herniation with a serious extrusion. The MRI also showed asymmetry to the left measuring about 5 millimeters that impinges on the anterior left and anterior aspect of the thecal sac. The MRI report indicated there was a serious associated annular tear, but no foramina stenosis. The doctor admitted he did not see the actual films, so he could not determine how old the findings were and would need a radiologist to look at the films to determine their age.

Dr. Calabrese testified that the claimant's current complaints are seven out of ten pain that is dull in the neck and low back, which medications help decrease. The doctor reported that the claimant has painful decreased range of motion and weakness. On the most recent examination the claimant's lumbar range of motion was restricted to 45 degrees of flexion (90 degrees is normal), extension to five degrees (30 degrees is normal), lateral flexion in each direction to 10 degrees (30 degrees is normal), and rotation to 10 degrees in each direction (30 degrees is normal). The claimant still has palpable mild spasms. Dr. Calabrese believed the claimant is temporarily totally disabled because the MRI results confirmed the serious injury to her lumbar spine. Before sending her back to sedentary work, the doctor testified that he wants to personally examine the claimant, send her for a functional capacity evaluation, and an orthopedic evaluation to make sure she is not a surgical candidate.

On cross-examination, Dr. Calabrese testified that the claimant cannot perform sedentary work at this time. The doctor admitted that the MRI does not show when the annular tear occurred, but he believed the tear is causally related to the work accident because the accident is capable of causing the MRI findings. Additionally, the claimant's low back pain has been constant since December 26, 2014, but was only occasional and episodic prior to the accident. The range of motion findings made during the October 22, 2015, examination supports his opinion to keep the claimant out of work. Dr. Calabrese admitted that he never personally examined the claimant, but he had seen her while she was in physical therapy. The doctor confirmed that he trusted the physical examination findings made by the doctors he employs, and he made his opinions based upon those findings (the reports filed by Dr. Calabrese during the period in question indicate that claimant was treated by either a nurse practitioner or physician's assistant employed in Dr. Calabrese's office).

The claimant was examined by the carrier's consultant, Dr. Landi, on April 29, 2015. In his IME-4 report. Dr. Landi noted that the claimant complained of six to seven out of ten back pain on the right side that radiated into the right buttock, which is worse with standing, lifting, lying down and walking. The claimant also complained of walking with an unsteady gait. On examination, the claimant presented in no apparent distress, with normal findings for the neck and thoracic spine. The lumbar spine examination showed normal range of motion, no tenderness, no deformity, and no paraspinal spasms. The low back had tenderness to palpation of the right S1 joint, and decreased sensation to light touch throughout her low back. The straight leg raise test on the right side produced S1 joint pain. The extremities showed no atrophy, and no trophic changes to the hair, skin or nails. The doctor noted that the claimant did not have difficulty getting off the exam table. Dr. Landi diagnosed the claimant with cervical strain, lumbar strain and right S1 dysfunction and opined that the claimant had a moderate partial disability. Dr. Landi's report lists the medical records that were provided to him to review, which reflects that he was not provided with the medical records of Dr. Calabrese or the MRI report.

In a reserved decision filed January 7, 2016, the WCLJ found that the claimant had a temporary total disability after July 23, 2015.


In evaluating the medical evidence presented, the Board is not bound to accept the testimony or reports of any one expert, either in whole or in part, but is free to choose those it credits and reject those it does not credit (see Matter of Morrell v Onondaga County, 238 AD2d 805 [1997], lv denied 90 NY2d 808 [1997]; Matter of Wood v Leaseway Transp. Corp., 195 AD2d 622 [1993]). Thus, questions of credibility, reasonableness, and relative weight to be accorded to conflicting evidence are questions of fact that come within the exclusive province of the Board (see Matter of Berkley v Irving Trust Co., 15 AD3d 750 [2005]).

In Matter of Panera (2013 NY Work Comp G0269795), cited by the carrier, the claimant was treated by three doctors. In that case, the treating physician testified regarding the examinations he personally performed and the examinations his nurse practitioner performed. The claimant's pain management specialist testified regarding the treatment and examinations his physician assistant performed under his supervision. The pain management specialist opined that the claimant had a temporary total disability. However, the claimant treated with an orthopedic surgeon's office, where she was examined by the surgeon's physician assistant. This doctor testified that the claimant had a moderate disability based upon his review of the examination findings, which contradicted his prior report of a total disability. Review of the legal analysis from the Board Panel's decision in Matter of Panera shows that this admission was one of the reasons the Board Panel adopted the opinion of the carrier's medical examiner. The Board Panel also rejected the other doctor's opinions of a total disability based upon the fact that this level of disability was not supported by the findings made on the examinations. At no point in Matter of Panera does the Board Panel disregard the treating doctor's opinions because they were based upon the examination findings made by their employees, and instead disregarded their conclusions regarding degree of disability because they were inconsistent with the findings on examination. The carrier's assertion that the basis for the Board Panel's decision in Matter of Panera "was that the carrier's consultant was the only doctor to have personally evaluated the claimant" is without merit.

Here, Dr. Calabrese based his opinion that claimant was temporarily totally disabled on the examination findings of a physician's assistant and nurse practitioner employed in his office, which noted significant restrictions, as well as the MRI of claimant's lumbar spine which showed a central disk herniation with a serious extrusion and an annular tear. In contrast, Dr. Landi based his opinion on degree of disability without the benefit of reviewing the MRI report. Dr. Landi's diagnosis of lumber strain is undermined by the MRI, which reflects a more significant injury to claimant's lumbar spine.

Therefore, the Full Board finds that the preponderance of the evidence supports a finding that the claimant has a temporary total disability after July 23, 2015.


ACCORDINGLY, the WCLJ's reserved decision filed January 7, 2016, is AFFIRMED. No further action is planned by the Board at this time.