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Workers' Compensation Board

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Case # G0307603
Date of Accident: 10/22/2009
District Office: NYC
Employer: Jacobs Medical Center
Carrier: CNY Other Than Ed, HEd Water
Carrier ID No.: W847008
Carrier Case No.: 0819-10-11182
Date of Filing of Decision: 11/28/2016
Claimant's Attorney: Grey and Grey LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

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 February 25, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether referral of this matter to an impartial specialist for an opinion on the degree of schedule loss of use (SLU) of the left arm was appropriate.

The Workers' Compensation Law Judge (WCLJ) concluded that the claimant was entitled to a 30% SLU of the right arm and a 75% SLU of the left arm.

The Board Panel majority held the WCLJ's decision in abeyance pending referral to an impartial specialist on the issue of degree of SLU of the left arm.

The dissenting Board Panel would affirm the WCLJ's decision.

On February 29, 2016, the claimant filed an application for Mandatory Full Board Review requesting that the Full Board affirm the WCLJ's decision.

In a rebuttal filed March 30, 2016, the self-insured employer (SIE) argues 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 claim is established for injuries to both shoulders sustained on October 22, 2009. On April 18, 2012, the claimant underwent left shoulder surgery, performed by Dr. Dines.

In OT/PT-4 (Occupational Therapist's/Physical Therapist's Report) reports for treatment rendered May 25, 2012, and June 15, 2012, claimant's physical therapists indicate that the claimant had passive abduction to 115 degrees and passive flexion to 135 degrees.

In a C-4.3 (Doctor's Report of MMI/Permanency) based on a July 24, 2013, date of examination, Dr. Dines opined that the claimant had a left shoulder impairment of 75% and a right shoulder impairment of 30%. In a narrative report dated July 24, 2013, Dr. Dines stated that claimant's "external rotation is limited to 20 degrees, internal rotation to L2 and she can only abduct 90 degrees." Dr. Dines opined that 90 degrees of abduction is consistent with a 40% SLU, marked defects of rotation consistent with a 10% SLU, a rotator cuff tear consistent with a 10% SLU, and biceps procedure consistent with 15% SLU, for a 75% SLU of the left arm. This report can be found attached to an IME-3 (Practitioner's Report of Request for Information/Response to Request Regarding Independent Medical Examination) that was filed with the Board on November 7, 2013.

Claimant was examined by the carrier's consultant, Dr. Hudak, on November 22, 2013. In an IME-4 (Practitioner's Report of Independent Medical Examination) report dated November 22, 2013, Dr. Hudak opined that the claimant has a 30% SLU of the right arm and a 50% SLU of the left arm. With respect to the left arm, Dr. Hudak found the claimant's abduction was 80 degrees, forward flexion to 70 degrees, extension to 45 degrees (normal), internal rotation to 50 degrees and external rotation to 45 degrees.

In a notice of proposed decision filed on April 8, 2014, the parties were encouraged to speak with each other to come to an agreement on the issue of SLU percentages. The parties were informed that if they reached an agreement, they were required to request further action and attach the agreement and fee application, and if they could not reach an agreement within 45 days, they were directed to produce deposition transcripts within 90 days of this decision, and a reserved decision would be issued by the WCLJ. No objection was filed to the proposed decision, which became final on May 13, 2014.

In a letter to the Board dated April 21, 2014, the claimant's attorney advised that the parties "were in the process of negotiating a possible resolution" and asked the Board to mark the case no further action pending production of the stipulation. However, there is no indication in the file that the parties subsequently stipulated to any SLU findings.

In a reserved decision filed May 8, 2015, the WCLJ determined that the parties waived cross-examination of Drs. Hudak and Dines and awarded claimant a 30% SLU of the right arm and a 75% SLU of the left arm. With respect to the left arm, the WCLJ stated in his decision that he "assigned 40% for abduction, 10% for rotation, 10% for the rotator cuff tear, and 15% for the biceps rupture, exactly as Dr. Dines did."

The carrier requested administrative review of the WCLJ's decision.

LEGAL ANALYSIS

"The Board clearly has the authority to appoint an impartial specialist during the review process (see Workers' Compensation Law § 13[e]; see, e.g., Matter of Gullo v Southern Erie Clinical Servs., 258 AD2d 689 [1999]), and its decision whether to do so in a particular case involves the exercise of discretion (see generally Matter of DeBlasio v New York City Dept. of Highways, 246 AD2d 837 [1998], lv denied 91 NY2d 813 [1998]; Matter of Li Greci v Greene, Tweed & Co., 17 AD2d 673 [1962], lv dismissed 12 NY2d 644 [1962], cert denied 372 US 977 [1963])" (Matter of Zingler v Eastman Kodak Co., 288 AD2d 564 [2001]).

The Full Board finds, upon review of the evidence of record, that referral of this matter to an impartial specialist for an opinion on the degree of SLU of the left arm was appropriate. The claimant's range of motion findings reflected in the reports of Dr. Dines and Dr. Hudak differ significantly, and the reports of claimant's physical therapists reflect functional ranges of motion that differ even more markedly from those of both Dr. Hudak and Dr. Dines. This is not simply a matter of medical experts disagreeing on how to interpret the claimant's limitations in light of the 2012 Impairment Guidelines in determining the appropriate SLU. Rather, the doctors' reports differ with respect to the physical findings underlying their respective conclusions.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed May 8, 2015, is HELD IN ABEYANCE pending referral of the claimant to an impartial specialist in the field of orthopedics or in a medical specialty deemed appropriate by the Board's Medical Director, for an opinion on the issue of degree of schedule loss of use of the left arm. Upon completion of the examination and upon conclusion of the period allotted for cross-examination, the case shall be returned to the Board Panel. The case is continued.