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Workers' Compensation Board

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Case # G0091744
Date of Accident: 11/22/2008
District Office: NYC
Employer: KES Construction Co Inc
Carrier: Ins Co of State of Penn
Carrier ID No.: W117006
Carrier Case No.: 709704167
Date of Filing of Decision: 10/27/2016
Claimant's Attorney: Jonathan H Poznansky
Panel: Kenneth J. Munnelly


The Full Board, at its meeting on September 20, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed March 30, 2016.


The issues presented for Mandatory Full Board Review are:

  1. whether the claimant has a total industrial disability; and
  2. whether the period of benefits from March 16, 2015, through September 25, 2015, should be awarded at a $150 per week temporary partial rate.

The Workers' Compensation Law Judge (WCLJ) found that the claimant has an 81% loss of wage earning capacity (LWEC), and declined to reduce the claimant's benefits to the $150 per week rate for the aforementioned period of time.

The Board Panel modified the WCLJ's decision to find that the claimant has a total industrial disability, but affirmed the awards made by the WCLJ for the period from March 16, 2015, through September 25, 2015.

The dissenting Board Panel member would affirm the WCLJ's decisions in their entirety.

On April 25, 2016, the carrier filed a request for Mandatory Full Board Review, arguing that claimant has failed to satisfy his burden of proving a total industrial disability and requesting that claimant's LWEC be reduced to 50%. The carrier also argues that the awards for the period from March 16, 2015, to September 25, 2015, prior to claimant's date of classification, should be made at the rate of $150.00 per week.

The claimant filed a rebuttal on May 20, 2016, urging the Full Board to adopt the majority opinion.

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


This claim is established for neck, back, right arm, and left elbow injuries sustained when the claimant was knocked from a ladder and fell approximately 10 feet while working on November 22, 2008. The average weekly wage is set at $900, and the claimant has received compensation benefits at varying rates.

The medical records show that the claimant had surgery immediately following the accident to repair a right arm fracture. He subsequently underwent an arthroscopic left elbow surgery to remove loose bodies; a right shoulder surgery to repair, among other things, several tears and frozen shoulder; numerous injections; multiple diagnostic studies; numerous courses of physical therapy; a lumbar discectomy on March 27, 2012; and a cervical fusion on September 8, 2014.

At a hearing held on June 4, 2014, the carrier was directed to continue benefits to the claimant at a $300 per week tentative rate. The record reflects that following the carrier's receipt of the operative report from the claimant's September 8, 2014, surgery, the carrier voluntarily increased benefits to the temporary total disability rate.

On March 16, 2015, less than a year after his cervical fusion, the claimant was examined by consulting physician, Dr. Denton, at the carrier's request. In his report, Dr. Denton found that the claimant had reached maximum medical improvement and has a mild partial disability of 25%. On April 3, 2015, the carrier requested a hearing to reduce the claimant's benefits to the mild disability rate of $150 per week. In reports dated March 25, 2015, and May 13, 2015, the claimant's treating physician, Dr. Ruoff, indicated that the claimant's condition is permanent, and that the claimant will remain out of work.

At a May 18, 2015, hearing, after an off the record discussion, the WCLJ directed that benefits continue at a $275 tentative rate, and both sides were directed to produce medical evidence of permanency. The carrier's counsel objected to the direction that benefits continue based upon his contention that the medical evidence did not contain an opinion of the specific degree of the claimant's disability. The carrier's counsel did not reference the consulting physician's report, did not request a reduction in benefits to the $150 per week rate, and did not request any immediate further development of the record. The findings are contained in the WCLJ's decision filed on May 21, 2015.

In an application for administrative review, dated June 11, 2015, the carrier asserted that the WCLJ erred by failing to reduce awards to $150.00 per week as of March 16, 2015, based upon Dr. Denton's opinion.

In rebuttal, the claimant's attorneys contended that the WCLJ reasonably reduced awards to a rate of $275.00, representing a 45% disability.

On June 15, 2015, the claimant was reexamined by the carrier's IME, Dr. Denton, who assessed the claimant with table 11.2 surgically treated spine condition, class 3, severity B level permanent impairments of his lumbar and cervical spine. Dr. Denton did not provide an opinion of permanent disability referable to the claimant's right arm or left elbow.

On June 29, 2015, Dr. Ruoff filed a C-4.3 (Doctor's Report of MMI/Permanent Impairment), dated June 9, 2015, in which he assessed the claimant with class 3, severity level B impairments of the lumbar and cervical spine, a 30% schedule loss of use (SLU) of the right arm and a 10% SLU of the left arm. The claimant was determined to be unable to perform sedentary work, unable to return to his former employment, and was deemed unlikely to benefit from vocational rehabilitation.

Dr. Ruoff testified in this matter on July 10, 2013, February 27, 2014, and September 3, 2015. He is an orthopedic surgeon who has been treating the claimant for his compensable injuries since November of 2008. When he testified prior to the claimant's cervical spine surgery, Dr. Ruoff opined that the claimant had a moderate to marked/marked permanent disability. During his most recent testimony, Dr. Ruoff explained that the claimant is permanently limited by range of motion deficits, pain, and his need for strong pain medication. The claimant is able to drive limited distances, and can perform his activities of daily living. It would be difficult for the claimant to perform sedentary work because he needs to be able to move about and change position, and because his pain medication would interfere with his concentration. Dr. Ruoff felt that most of the claimant's surgeries had been successful, but felt the lumbar surgery may not have been.

Dr. Denton testified in this matter on July 12, 2013, October 4, 2013, and September 11, 2015. He is an orthopedic surgeon, and he has examined the claimant four times. As of October 4, 2013, Dr. Denton felt that the claimant had class 4, severity D impairments of his cervical and lumbar spine (Deposition Transcript, 10/4/13, pgs. 6, 8, 12, 19). The doctor explained that while he believes that the most recent permanent impairment guidelines direct that such findings translate as a mild disability level, if he were to rate the claimant using the prior guidelines he would have assessed the claimant as moderately disabled (id., p. 13). The doctor also felt the claimant should limit his occupational endeavors to light work. The claimant's need for pain medication may also limit his work capacity.

During his testimony provided on September 11, 2015, Dr. Denton testified that the claimant had a class 3, severity B impairment of his neck and low back. The claimant's low back examination had improved since the prior exam, and the claimant had undergone cervical spine surgery. In his report, Dr. Denton did not initially provide any opinion as to permanency of the claimant's arms. He testified that if the claimant did not have residual disability in his neck and back, the claimant could be assessed with a 5% SLU of his left arm, and a 25% SLU of his right. Dr. Denton testified that the claimant is limited to 30 pounds of continuous lifting and would be able to perform light work. Dr. Denton agreed that the claimant should not perform certain types of work during a period that he is taking narcotic medication.

At a September 24, 2015, hearing, the claimant testified that he was born in Syria and was 59 years of age. He speaks Arabic and, in spite of various attempts to learn, is unable to speak, read, or write in English. He did not finish school, and could not recall his age when he stopped attending school in grade 9. The claimant came to the United States in 1988, when he was approximately 30 years old, and has only worked in construction. He has a cell phone, but does not have a computer and does not know how to use e-mail.

At the conclusion of the claimant's testimony, following summations by the parties, the WCLJ took note of the fact that in spite of the claimant's reported language barrier, the claimant had been able to answer some questions prior to hearing their translation. Nonetheless, the WCLJ acknowledged the claimant's permanent physical impairment, considered the vocational factors, and found the claimant to have an 81% LWEC. The WCLJ also found that the medical evidence supported a finding of a 75% marked partial disability during the period from May 19, 2015, through September 25, 2015, and modified those awards. The carrier was directed to continue payments at a $486 per week permanent partial disability rate. These findings are contained in a WCLJ's decision filed on September 30, 2015.

In an application for administrative review dated October 23, 2015, the carrier argued that there is no objective medical evidence to support an 81% LWEC. The carrier also suggested that the claimant misrepresented his ability to communicate in English. The carrier asked that claimant's LWEC be reduced to 50%. The carrier also argued that the WCLJ erred by "retroactively modifying" awards for the period from May 19, 2015, to September 25, 2015, because those benefits were the subject of an outstanding application for administrative review.

In an application for administrative review dated October 29, 2015, the claimant's attorney requested a finding that the claimant has at least a marked degree of impairment and that the claimant's vocational factors support a total level of permanent impairment.

In rebuttal, the carrier argued that the claimant's LWEC should be reduced for the reasons stated in its application for administrative review, and not at all increased.


Prior awards

At the May 18, 2015, hearing, the parties did not request any immediate further development of the record, and thus the WCLJ was required to issue a decision based upon the evidence available. The record reflects that the WCLJ considered the evidence and the positions articulated by the parties in arriving at his conclusion, and that, as to the periods of awards at issue, the carrier acquiesced. Since the record contained sufficient medical evidence to justify the directed awards, and as the carrier did not articulate a request or a basis for the WCLJ to decide differently, the directed awards are affirmed (see also Matter of Brown v Orange County Home & Infirmary, 283 AD2d 797 [2001]). The carrier argues that awards made by the WCLJ at the September 24, 2015, hearing for the period from May 19, 2015, through September 25, 2015, were incorrectly set at "the higher LWEC rate," but should have been based solely on claimant's medical impairment. However, it is clear that the WCLJ, when making those awards, only considered claimant's physical impairment, did not set awards at claimant's permanent disability rate, and did not consider vocational or other factors (see transcript, 9/24/15 hearing, p. 13). The medical evidence in the record, in particular the reports and testimony of Dr. Ruoff, support those awards.

LWEC and Total Industrial Disability

To prove a claim for total industrial disability, a permanently partially disabled claimant must demonstrate how the disability combines with other factors to "render the claimant incapable of salaried employment" (Matter of Guan v CPC Home Attendant Program, Inc., 50 AD3d 1218 [2008]). These other factors may include claimant's limited educational background, functional limitations, age, language proficiency, training, and work experience (Matter of Barsuk v Joseph Barsuk, Inc., 24 AD3d 1118 [2005]; Matter of Kowalchyk v Lupe Constr. Co., 151 AD2d 927 [1989]; Guan, 50 AD3d 1218 [2008]). In evaluating this issue, the Board may consider one or more of the following types of evidence: claimant's testimony regarding the factors enumerated above, and any efforts to secure employment; medical evidence showing that claimant is functionally incapable of working; and/or a report from claimant's vocational rehabilitation expert demonstrating claimant's unsuitability to general employment. Evidence that a claimant has made attempts to secure employment without success is not a prerequisite for a finding of total industrial disability Matter of Interstate Brands Corp., 2013 NY Wrk Comp 20205906). "Whether a total industrial disability exists presents a question of fact for the Board to resolve and its determination will be upheld if supported by substantial evidence" (Matter of Kucuk v Hickey Freeman Co., Inc., 78 AD3d 1259 [2010] [internal citations omitted]).

When assessing LWEC, medical impairment is based on opinions provided by physicians/medical professionals based on severity rankings that are set forth in the 2012 Impairment Guidelines; the medical professional must state the basis for the opinion of impairment. A functional evaluation is conducted by a physician/medical professional to determine the claimant's functional and exertional abilities and the physician should consider whether other conditions contribute to the claimant's overall functional loss. Vocational and other non-medical factors include age, education/training, work history/skills, literacy and English proficiency. The WCLJ must evaluate the medical evidence and testimony to make findings of medical impairment and functional ability and loss. The WCLJ then applies the vocational factors and any other relevant factors which have been developed through documentary evidence (such as the Form VDF-1) and/or lay testimony. The vocational factors that factored into the determination should be listed by the WCLJ.

A determination as to LWEC requires development of the record as to the nature and degree of permanent impairment, work restrictions, age, education, language ability, and other relevant factors (Matter of Wormley v Rochester City Sch. Dist., 126 AD3d 1257 [2015]). 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 consulting and treating physicians more or less agree that the claimant has class 3, severity level B impairments of his cervical and lumbar spine, and residual impairments of both arms. The doctors disagree as to the claimant's functional limitations, as the consulting physician believes that the claimant can perform light work, and the treating physician believes that the claimant would have difficulty performing sedentary work. The treating physician has described the claimant's disability level as moderate to severe.

As to the claimant's overall LWEC and the issue of total industrial disability, while the Board Panel majority has considered the claimant's education level to be a limiting factor, in fact the claimant failed to provide sufficient evidence upon which to make such determination. The claimant was asked to explain what a grade 9 education in Syria equates to, and failed to do so. Moreover, the claimant was inexplicably unable to state whether grade 9 is generally completed at the age of 12, or at the age of 18. The claimant also failed to explain his inability to provide this information. It is suggested here that the claimant's education appears to be limited, but that the claimant has not provided sufficient information on this point. The claimant's work experience is clearly limited. The claimant's age is somewhat limiting. The extent of the claimant's language barrier has been called into question based upon the WCLJ's intentional and explicit observation that the claimant answered questions prior to translation.

Here, in light of the particular facts of this matter and the limited vocational information that has been provided thus far, the preponderance of the evidence in the record supports affirming the 81% LWEC found by the WCLJ.


ACCORDINGLY, the WCLJ decisions filed May 21, 2015, and September 30, 2015, are AFFIRMED. No further action is planned by the Board at this time.