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Workers' Compensation Board

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Case # G0472290
Date of Accident: 06/30/2011
District Office: NYC
Employer: Pace Plumbing Corp
Carrier: ACE American Insurance Co.
Carrier ID No.: W019004
Carrier Case No.: C375C7578043
Date of Filing of Decision: 11/28/2016
Claimant's Attorney: Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano 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 on May 5, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is proper percentage of loss of wage earning capacity (LWEC).

The Workers' Compensation Law Judge (WCLJ) found that the claimant had a 35% LWEC.

The Board Panel majority modified the WCLJ's decision to find that the claimant has a 70% LWEC.

The dissenting Board Panel member would set the claimant's LWEC at 50%.

In its application for Mandatory Full Board Review filed June 2, 2016, the carrier argues that the WCLJ's finding of a 35% LWEC should be reinstated because it is most consistent with the evidence. Alternatively, the carrier asserts that the dissenting Board Panel member's finding that the claimant only has a 50% LWEC should be adopted by the Full Board.

The claimant filed a rebuttal asserting that the 70% LWEC finding should be affirmed.

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

FACTS

On June 30, 2011, claimant, then a 33 year old apprentice plumber, injured his back at work. This case was initially established for a work-related back injury and the average weekly wage set at $565.00. The claim was later amended to include adjustment disorder.

In a decision filed March 9, 2015, the parties were directed to produce the medical depositions of claimant's treating physician, Dr. Savarino, and the carrier's consultant, Dr. Rubinshteyn, on the issue of medical impairment before the claimant testified regarding vocational factors. However, Dr. Rubinshteyn failed to appear to testify and his report was precluded.

Dr. Savarino was deposed on April 17, 2015, and testified that he had been treating the claimant for his back injury since December 8, 2011. The claimant made complaints of constant low back pain with burning pain in the left leg at night. At that time, the claimant ambulated with a cane. On examination, the claimant had spasms and tenderness in the lumbar paraspinal region, decreased range of motion limited in all planes of motion, positive straight leg raise on the left leg and inch atrophy on the left leg. The doctor diagnosed the claimant with a lumbar herniated disc with radiculopathy.

At the most recent office visit on February 9, 2015, Dr. Savarino examined the claimant for purposes of determining permanent medical impairment. The doctor made physical examination findings of muscle spasms, tenderness and limited lumbar range of motion. The doctor measured 42 degrees of flexion, 5 degrees of extension, 15 degrees of side bending, left rotation to 35 degrees and right rotation to 15 degrees. The doctor noted the claimant had a positive straight leg raise test on the left side. The doctor maintained his diagnosis of a lumbar herniated disc with radiculopathy. The doctor testified he believed that the claimant was limited to less than sedentary work. The doctor applied the medical impairment guidelines to determine that the claimant has a class 4 severity "F" permanent medical impairment based upon the clinical findings, imaging findings showing the herniated disc and the EMG that confirmed the L5-S1 radiculopathy.

On cross-examination, the doctor testified that since December 8, 2011, he has been providing the claimant with medications and sent him to physical therapy. The EMG performed on March 19, 2014, was positive for radiculopathy with denervation in the right calf muscle. The doctor testified that the claimant cannot perform sedentary work because he cannot engage in pushing, pulling, climbing, kneeling or squatting. The doctor testified that the claimant can occasionally lift five pounds, stand, walk, reach overhead, drive, operate machinery and work in temperature or humidity. The doctor testified that the claimant can frequently sit, constantly grasp objects and perform fine manipulation. The doctor confirmed that the claimant is 6' 8" tall and weighs 300 pounds.

Claimant testified at a hearing on May 7, 2015, that he is 37 years old and obtained a bachelor's degree in communication after the work-related back injury. The claimant admitted he can use a computer and drive a car. The claimant's prior work history included working as a plumber for ten years, and before that he worked in gyms and bars. The claimant's work history only included positions that require heavy lifting. The claimant takes venaclaxin, mosartin and muscle relaxers as he needs them.

On cross-examination, the claimant confirmed that he has not worked in his field of study yet. He has difficulty walking, so he must spend most of his time in a recliner. He cannot even sleep in a bed. The claimant admitted that he can mop and place dishes in the dishwasher on good days. The claimant's family helps him mow the lawn. He uses a cane to walk when he is having a bad day, which he has to keep in his car. The claimant explained that he only uses the cane when he walks or stands for a long period of time.

With regard to his college course work, the claimant testified that he took one class at a time, which were 45 to 90 minutes long, three days a week. The claimant testified that he had difficulty sitting through these classes and would have to go in and out of the classroom.

After hearing claimant's testimony, the WCLJ found that the claimant has a severity "F" permanent medical impairment of the lumbar spine. The WCLJ further concluded that claimant had an LWEC of 35% because the claimant is capable of sedentary work and has obtained a bachelor's degree since he was injured. These findings are reflected in a decision filed May 15, 2015.

In his application for administrative review, the claimant argued that he has a 100% LWEC due to the severity of his disability and because he has only worked in physically demanding jobs, which he can no longer perform. Additionally, the claimant argues that consideration should be given to the fact that the social security administration has deemed the claimant incapable of gainful employment based on the same medical evidence submitted to the Board.

In its rebuttal, the carrier asked that the WCLJ's decision be affirmed.

LEGAL ANALYSIS

Workers' Compensation Law (WCL) § 15(3)(w) limits the number of benefit weeks payable to a claimant with a non-schedule permanent partial disability and a date of accident or disablement on or after March 13, 2007. The WCL § 15(3)(w) caps do not begin to run until a final classification decision has been made, and the claimant is not "classified" with a "permanent" disability until a finding is made regarding the LWEC (Matter of Liberty Ashes Inc, 2015 NY Wrk Comp G0435091; Matter of Administration for Children's Services, 2015 NY Wrk Comp G0382601).

Pursuant to WCL § 15(3)(w), the "loss of wage earning capacity" must be determined upon a preponderance of the evidence in the record concerning the nature and degree of the work-related permanent physical and/or mental impairment, work restrictions, claimant's age, and any other relevant factors (Matter of Cameron v Crooked Lake House, 106 AD3d 1416 [2013]).

In this case, the medical evidence shows that the claimant's back injury causes a severe impairment and limits his ability to function even in a sedentary work environment. The treating doctor's objective medical findings of spasms and atrophy confirmed the claimant's complaints of radiating low back pain. Additional support for these complaints were contained in the MRI showing a herniated disc and EMG testing that confirmed the L5-S1 radiculopathy and denervation of the right calf.

Claimant's physical impairment makes him unable to perform the sort of work he did prior to the accident. He is, however, relatively young, being only 37 at the time of classification, and he obtained a bachelor's degree in communications subsequent to his injury, and might be able to find sedentary work within his restrictions in the future. Were his injury less severe, these mitigating factors might warrant an LWEC significantly lower than the 70% found by the majority. However, the medical evidence suggests that claimant's disability affects his ability to perform even sedentary work.

In consideration of all these factors, the Full Board finds that the preponderance of the evidence in the record supports finding a 70% LWEC.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed May 15, 2015, is MODIFIED to find that the claimant is classified with a permanent partial disability resulting in a 70% LWEC, entitling him to permanent partial disability benefits not to exceed 375 weeks, and that permanent partial disability awards are payable from May 8, 2015, forward at the rate of $263.67 per week. No further action is planned by the Board at this time.