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Workers' Compensation Board

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Case # G0702330
Date of Accident: 01/14/2013
District Office: Albany
Employer: New York State Assembly
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 66157173
Date of Filing of Decision: 10/27/2016
Claimant's Attorney: Alex C Dell Esq.
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 March 10, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the schedule loss of use (SLU) awarded by the Workers' Compensation Law Judge (WCLJ) should have been rescinded and the case referred to a Board appointed impartial specialist to examine the claimant on the issue of permanency.

The WCLJ awarded the claimant a 37.5% SLU of the left arm.

The Board Panel majority rescinded the WCLJ's decision and found that the claimant should be examined by a Board appointed impartial specialist in the field of orthopedics to clarify the issue of SLU versus classification.

The dissenting Board Panel member would reverse the WCLJ's finding that the claimant has a 37.5% SLU of the left arm and would classify him with a permanent partial disability.

In his application for Mandatory Full Board Review filed April 8, 2016, claimant requests that the decision of the dissenting Board Panel member be adopted by the Full Board.

In its rebuttal filed April 22, 2016, the carrier argues that claimant should be awarded a 37.5% SLU of the left arm, or in the alternative, that the decision of the Board Panel majority be adopted by the Full Board.

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

FACTS

This case is established for a work-related left arm and left shoulder injuries. The average weekly wage for the year before the January 14, 2013, accident was set at $589.78. The issue of permanency was joined during the November 5, 2014, hearing. The record was closed during the April 1, 2015, hearing because the parties waived cross-examination of the doctors. The parties were directed to submit memorandum of law on the issue of SLU versus classification by May 1, 2015. The WCLJ filed a reserved decision dated May 27, 2015, that awarded the claimant a 37.5% SLU of the left arm.

In a C-4.3 report dated June 4, 2014, the claimant's treating physician, Dr. Ortiz, reported that the claimant had a 50% SLU of the left arm. In a January 28, 2015, report, a physicians' assistant supervised by Dr. Ortiz explained that the 50% SLU is based upon the claimant's forward flexion being limited to 90 degrees and abduction being limited to 75 degrees. The doctor reported that the claimant's external rotation was limited by pain to 30 degrees and internal rotation was "limited to LS junction."

The claimant was examined by an independent medical examiner, Dr. Belmonte, on May 21, 2014, at the request of his attorney. Dr. Belmonte reported that the claimant's injuries were amenable to a 35% SLU of the left arm. The doctor's examination revealed that the claimant had well healed operative wounds over the left shoulder, and the left arm girth was inch smaller than the right arm. The claimant had diffuse complaints of pain over the left shoulder when it was palpated. The claimant had crepitus with range of motion testing, but no instability. The claimant's active range of motion was measured at 100 degrees of anterior flexion and abduction, 50 degrees of external rotation and 60 degrees of internal rotation. The doctor noted that the claimant's left girdle strength was graded four out of five with complaints of pain.

The carrier had the claimant examined by Dr. Coniglio on June 13, 2014. The carrier's medical examiner concluded that the claimant should be classified with moderate to marked (66 2/3%) permanent partial disability. The doctor found that the claimant was tender to palpation of the left shoulder. The left shoulder had no swelling or atrophy. The claimant's range of motion was limited to 90 degrees of abduction, 60 degrees of forward flexion, 15 degrees of external rotation, 0 degrees of internal rotation and 5 degrees of extension. The doctor noted that the claimant had pain when performing all maneuvers.

After reviewing the medical records and the parties' memoranda of law, the WCLJ, in a reserved decision filed May 27, 2015, awarded the claimant a 37.5% SLU of the left arm.

The claimant sought administrative review, asserting that the SLU award should be rescinded and the claimant classified with a moderate to marked permanent partial disability, or in the alternative, that the SLU award be rescinded and the case referred to a Board appointed impartial specialist to render an opinion on the issue of permanency. The carrier filed a rebuttal asserting that the WCLJ's finding of a 37.5% SLU of the left arm should be affirmed.

LEGAL ANALYSIS

"'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' (Matter of Dillabough v Jaquith Indus., 305 AD2d 884 [2003] [citations omitted]; see Matter of Somers v Texaco, Inc., 174 AD2d 842 [1991]) . . . Where there is no continuing need for medical treatment and the medical condition is essentially stable, a schedule loss of use award is appropriate rather than an award for continuing disability benefits (compare Matter of Walker v New Process Gear Div., 201 AD2d 768 [1994]; Matter of Jett v Lew Mark Baking Co., 192 AD2d 895 [1993])" (Matter of Jweid v Vicks Lithograph & Print., 25 AD3d 930 [2006]).

"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]).

Medical findings favoring classification included the inch atrophy of the left arm, progressive pain with motion, and weakness in the shoulder. The medical findings supporting an SLU award include the significant decreased range of motion with no instability in the joint.

Under these circumstances, given the disparate opinions of the medical experts, the Full Board findings that a Board appointed impartial specialist should examine the claimant and provide an opinion on the issue of permanency is supported by the preponderance of the evidence in the record.

CONCLUSION

ACCORDINGLY, the WCLJ's reserved decision filed May 27, 2015, is RESCINDED, without prejudice. The case is continued and is referred to the Albany Impartial Specialist Unit for the designation of an impartial orthopedist to examine the claimant, review the medical records, and issue a report on the issue of SLU versus classification with regards to the claimant's left shoulder. After the submission of the report, both sides shall be granted an opportunity to request cross-examination of the impartial specialist. The case shall then be referred back to the Board Panel for a decision.