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Case # G0718256
Date of Accident: 04/10/2013
District Office: Hauppauge
Employer: National Grid Electric Service
Carrier: National Grid USA
Carrier ID No.: W556500
Carrier Case No.: B378400979000101784
Date of Filing of Decision: 10/27/2016
Claimant's Attorney: Markhoff & Mittman PC
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

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 on February 29, 2016.

ISSUES

The issues presented for Mandatory Full Board Review are whether the claimant was at maximum medical improvement (MMI), and the self-insured employer's (SIE's) entitlement to reimbursement pursuant to Workers' Compensation Law (WCL) § 25(4)(a).

The Workers' Compensation Law Judge (WCLJ) found that the claimant was at MMI and awarded the claimant a 10% schedule loss of use (SLU) for the left leg, a 10% SLU for the right leg, a 12.5% SLU for the left arm, and a 15% SLU for the right arm.

The Board Panel majority affirmed the SLUs awarded by the WCLJ. The Board Panel majority also determined that the employer was not entitled to a reimbursement from the SLU award because its application failed to cite to a specific reimbursement request in its application for administrative review.

The dissenting Board Panel member would find that the SLU awards should be rescinded because the claimant is not at MMI.

The SIE filed an application for Mandatory Full Board Review on March 24, 2016, arguing that the claimant is not entitled to an SLU award because he has not reached MMI. The SIE further argued that the employer is entitled to a reimbursement for the wages previously paid pursuant to WCL § 25(4)(a).

The claimant filed a rebuttal on April 12, 2016, requesting that the majority opinion be affirmed.

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

FACTS

This case was previously established for work-related injuries to the neck, back, both shoulders, both knees and post-concussion syndrome (PCS). The average weekly wage for the year before the April 10, 2013, accident was set at $2,366.29. The issue of permanency was joined during the May 13, 2015, hearing with the WCLJ directing the parties to depose Dr. Hecht and Dr. Leppard on the issue of proper SLU. The WCLJ directed the parties to complete development of the record and submit summations by July 8, 2015.

Dr. Hecht testified that he first saw the claimant on June 9, 2014, for a work-related motor vehicle accident that occurred on April 10, 2013. The claimant complained of bilateral shoulder and bilateral knee pain. On examination, the claimant had tenderness at the right shoulder with restricted range of motion and a positive Hawkins sign. The doctor explained that the result of the Hawkins test suggests that the tendon is getting impinged in the shoulder. The claimant's right knee had tenderness at the medial joint line, restricted range of motion and a positive McMurray's sign. The left knee had similar findings. The doctor explained that the McMurray's test results suggest that the claimant had a meniscus tear in each knee. The doctor's working diagnosis at that time was bilateral knee derangement and bilateral shoulder derangement.

The doctor testified that the May 9, 2013, MRI showed that the left knee had some plica thickening. The MRI of the right shoulder showed supraspinatus infraspinatus tendinosis and a non-displaced tear of the posterior superior labrum.

During the July 7, 2014, office visit the doctor examined the claimant and determined that he was at MMI. The doctor testified that the claimant is entitled to a 12.5% SLU of the left arm, a 15% SLU of the right arm, a 10% SLU of the left leg, and a 10% SLU of the right leg. The doctor testified that his SLU opinions were based upon an application of the impairment guidelines to the claimant's range of motion.

On cross-examination, the doctor admitted that he found the claimant to be at MMI a month after he saw him for the first time. The doctor testified he did not examine the claimant's back, neck or the PCS because the claimant did not make complaints regarding these conditions.

Dr. Leppard examined the claimant for the SIE on July 18, 2013, and November 13, 2014. On July 18, 2013, the doctor took a history that the claimant is a 58 year old male who had a work-related motor vehicle accident causing injuries to the head, neck, back, both shoulders, both arms, both knees and both legs. The doctor testified that he found no objective abnormal findings because the claimant had resolved soft tissue injuries. The doctor testified that the claimant is able to return to work with no causally related residual disability from the April 10, 2013, accident. The doctor made the same findings and reached the same conclusions during the November 13, 2014, examination.

On cross-examination, the doctor asserts that the small right shoulder tear shown on the MRI is really a normal finding unrelated to the motor vehicle accident. The doctor testified that the claimant is able to work full duty without restrictions.

The Board's electronic file contains several medical reports completed by Dr. Gray, who has been treating the claimant for his PCS. The August 27, 2014, report indicates that the claimant made complaints of blurry vision and trouble focusing with increased activity. The claimant also reported being unbalanced.

The March 31, 2015, office visit note by Dr. Gray reported that the claimant complained of blurry vision, short term memory loss, concentration issues and cognitive issues with increased activity at work. The claimant also reported having trouble sleeping. The doctor diagnosed the claimant with a concussion and post-concussion syndrome resulting from the April 10, 2013, motor vehicle accident.

Dr. Gray's May 11, 2015, office visit reports that the claimant complained that his symptoms had not changed since the last office visit. The claimant reported an exacerbation of his cognitive difficulties, fatigue, lack of balance and spelling issues. The doctor assessed the claimant with PCS related to the April 10, 2013, accident which is causing residual cognitive difficulties.

After reviewing the testimony and medical records, the WCLJ made a finding awarding the claimant a 12.5% SLU of the left arm, a 15% SLU of the right arm, a 10% SLU of the left leg, and a 10% SLU of the right leg. The WCLJ found Dr. Hecht's testimony to be most credible, and rejected Dr. Leppard's testimony that the work-related motor vehicle accident caused no residual impairments.

The SIE applied for administrative review asserting that the claimant's treatment for PCS requires that the SLU awards be rescinded because the claimant is not at MMI, and it also asserts that its reimbursement request was not considered. The SIE based its application upon the July 31, 2015, C-4 authorization request for vestibular therapy, which occurred shortly before the WCLJ's reserved decision was filed on August 3, 2015. The claimant's rebuttal asserts that the SIE never argued that the claimant was not at MMI when the issue was litigated before the WCLJ.

Further review of the Board file shows that the SIE submitted a reimbursement request for wages paid to the claimant in lieu of compensation benefits on October 23, 2013. The request, which is found in the Board file at Doc ID# 218681845, indicates a reimbursement request in the amount of $40,977.30. The SIE's request clearly indicates that it is requesting that the whole reimbursement be made payable to the SIE should an SLU award be made. A notice of decision filed on November 19, 2013, indicates that all the awards made during that hearing were reimbursed to the SIE pursuant to this request.

LEGAL ANALYSIS

SLU Awards

"An award for continuing disability benefits is indicated 'where there is a continuing condition of pain or continuing need for medical treatment or the medical condition remains unsettled' (Matter of Clark v General Elec. Co., 68 AD2d 960 [1979]; see Matter of Walker v New Process Gear Div., 201 AD2d 768 [1994]; Matter of Torres v TAD Tech. Servs., 193 AD2d 975 [1993]; Matter of Clifford v Larkin Rest., 31 AD2d 866 [1969]). Whether a condition warrants a schedule loss award or an award of continuing disability benefits is a question of fact for resolution by the Board (see Matter of Jett v Lew Mark Baking Co., 192 AD2d 895 [1993]; Matter of Clark v General Elec. Co., supra)" (Matter of Dillabough v Jaquith Indus., 305 AD2d 884 [2003]).

Section 1.5 of the New York State Guidelines for Determining Permanent Medical Impairment and Loss of Wage Earning Capacity (guidelines) set criteria for determining when an SLU award is appropriate. Before an SLU for an extremity can be awarded there must be a permanent impairment involving the anatomical or functional loss of the extremity. The next criteria is that the claimant must be at MMI. Finally, the claimant must have no residual impairments in the systemic area, which include the head, neck and back, assuming one of these body sites was injured in the same accident.

The Full Board finds that in this case the medical evidence shows that despite the fact that the injuries to the extremities have plateaued and reached MMI, claimant still has ongoing disability from his head in the form of symptomatic PCS. The claimant cannot be awarded the multiple SLU awards while this condition is still symptomatic. The SLUs awarded by the WCLJ are rescinded and the case remanded to the WCLJ to consider permanency for all the medical conditions.

Employer Reimbursement

"Pursuant to Workers' Compensation Law § 25(4)(a), an employer is entitled to reimbursement of 'advance payments of compensation' or 'payments [made] to an employee in like manner as wages' while that employee is disabled. The latter phrase, 'made in like manner as wages,' was ... designed to enable an employer to recover reimbursement for payments made to an employee during the period of disability which had not been expressly designated as advance payments of compensation. An employer can be reimbursed for compensation paid to a claimant even if that compensation was paid in accordance with a contract or a collective bargaining agreement. Under the statute, an employer is entitled to reimbursement of these wages unless such reimbursement would achieve a disproportionate result, either to the employer or employee" (Matter of Houda v Niagara Frontier Hockey, 16 AD3d 926 [2005] [additional quotation marks and internal citations omitted]).

In Matter of Karl v New Venture Gear et al. (41 AD3d 1024 [2007]) and Matter of Groth v Daimler Chrysler Corp. (41 AD3d 1021 [2007]), the Appellate Division, Third Department, reversed Board Panel decisions which found that the filing for reimbursement after an award, but before a schedule was made, was timely under WCL § 25(4)(c). The Court held that WCL § 25(4)(c) requires an employer to submit its request for reimbursement, and the applicable provisions of its welfare plan, prior to the first award of compensation.

In this case the Board file contains a reimbursement request from the SIE for a specific amount that was submitted before any awards were ever made. That request shows that the SIE requested a reimbursement of $40,977.30, which request was sufficient to make a reimbursement during the November 14, 2013, hearing, without objection by the claimant or his counsel. When the case is returned to the hearing calendar to address permanency from all the disabling conditions, the employer's reimbursement request should be addressed.

CONCLUSION

ACCORDINGLY, the WCLJ's reserved decision filed August 3, 2015, is RESCINDED, and the case is continued for further development of the record on permanency and consideration of the employer's reimbursement request. The case is continued.