Skip to Content

Workers' Compensation Board

Language Assistance: (877) 632-4996 | Language Access Policy

 


Case # G0482627
Date of Accident: 08/25/2011
District Office: Buffalo
Employer: Allpro Parking LLC
Carrier: Zurich American Insurance Co.
Carrier ID No.: W228001
Carrier Case No.: 2440147072
Date of Filing of Decision: 05/19/2017
Claimant's Attorney: Hurwitz, Whitcher & Molloy
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on April 25, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed October 24, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the medical evidence supports the finding that the claimant has a 55% schedule loss of use of the right leg.

The Workers' Compensation Law Judge (WCLJ) found the medical evidence supported the finding that the claimant has a 55% schedule loss of use of the right leg.

The Board Panel majority agreed, finding the claimant has a 55% schedule loss of use of the right leg.

The dissenting Board Panel member found the claimant's schedule loss of use was 25%.

The carrier filed an application for Mandatory Full Board Review on November 23, 2016, urging the Full Board to adopt the opinion of the dissenting Board Panel member.

The claimant filed a rebuttal on December 14, 2016, requesting that the Full Board adopt the findings and opinion of the Board Panel majority.

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

FACTS

This claim is established for a work-related right knee injury that occurred on August 25, 2011. Claimant's average weekly wage has been set at $804.95. Claimant underwent a right total knee replacement on June 2, 2014, performed by Dr. Phillips.

In reports based on examinations performed July 1, 2014, July 7, 2014, July 9, 2014, July 15, 2014, July 18, 2014, July 21, 2014, July 30, 2014, August 15, 2014, August 19, 2014, August 22, 2014, August 26, 2014, August 28, 2014, September 2, 2014, September 5, 2014, September 10, 2014, September 18, 2014, and September 23, 2014, claimant's treating physicians, Dr. McGrath and Dr. Phillips, found that claimant had a range of motion of the right leg that did not exceed 105 degrees of flexion.

In a report dated October 6, 2014, for an examination performed on September 25, 2014, Dr. Phillips reported active range of motion of claimant's right leg from 10 degrees to 105 degrees and passive range of motion of the right leg from 5 degrees to 105 degrees.

In an EC-4.3 (Doctor's Report of MMI/Permanent Impairment) dated August 4, 2015, based on a July 22, 2015, examination, Dr. Phillips reported that the claimant had reached maximum medical improvement, that claimant's range of motion for the right knee was 0 to 120 degrees with good stability, that he had mild tenderness over the iliotibial band, and no right knee effusion. Claimant had some crepitus and osteoarthritis in his left knee. Dr. Phillips concluded that claimant had a 55% schedule loss of use.

At a hearing on October 5, 2015, the carrier stated that they waived the opportunity to have claimant examined by an independent medical examiner. The carrier argued that because Dr. Phillips reported the claimant's range of motion for the right knee was 0 to 120 degrees, which equaled a 7 to 10% schedule loss of use, and when combined with the 10-15% schedule loss of use for bone loss, claimant had a total of 25% schedule loss of use. The carrier noted Dr. Phillips had concluded the claimant's schedule loss of use was 55%, but the conclusion was not supported by his range of motion findings. The carrier requested the opportunity to take Dr. Phillips' testimony. In the resulting decision filed October 8, 2015, the WCLJ directed the parties to complete Dr. Phillips' deposition by December 5, 2015, and adjourned the claim to December 14, 2015.

In a report dated November 20, 2015, for an examination on November 11, 2015, Dr. Phillips noted the claimant reported his workers' compensation claim was "denied" because the range of motion findings in the C-4.3 were within the normal range. Dr. Phillips wrote that he reviewed the C-4.3, which reported the claimant's range of motion from 0 to 120 degrees, and he also reviewed the progress reports leading up to the EC-4.3. Based on the review of all the reports, Dr. Phillips concluded that the range of motion findings of 0 to 120 degrees noted in the C-4.3 "were most likely a typographical error." At the November 11, 2015, examination, Dr. Phillips first measured the range of motion of the right leg using a goniometer, and reported a range of 0 to 100 degrees, and then 0 to 103 degrees with forced flexion. The report also indicated the physician's assistant measured 97 degrees of flexion using the goniometer. As such, Dr. Phillips noted the range of motion findings were from 0 to 100 degrees, and opined the claimant's schedule loss of use was 55%.

Although the WCLJ had directed the parties to complete Dr. Phillips' deposition by December 5, 2015, Dr. Phillips was not deposed until December 11, 2015, and the transcript of the deposition was not in the record at time of the adjourned hearing on December 14, 2015. At that hearing, after listening to summations by the parties, the WCLJ found the claimant had a 55% schedule loss of use of the right leg. That award is reflected in a decision filed December 18, 2015.

In its application for administrative review of the WCLJ's December 18, 2015, decision, the carrier argued the medical evidence supports a schedule loss of use of 25%, and not 55%. The carrier noted that Dr. Phillips's C-4.3 found the claimant's range of motion was 0 to 120 degrees, which according to the 2012 Permanency Guidelines, totaled a 7 -10% schedule loss of use. When factoring in bone loss, the claimant's total schedule loss of use was 25%. The carrier argues Dr. Phillips' explanation that he made a typographical error when he indicated the claimant's range of motion was 0 to 120 degrees was not credible.

In rebuttal, the claimant argued the WCLJ decision should be affirmed because Dr. Phillips credibly opined that the measurements contained in his C-4.3 were wrong, and his November 11, 2015, range of motion findings were accurate.

LEGAL ANALYSIS

Initially, transcript of the deposition testimony of Dr. Phillips was not in the record and was not considered by the WCLJ at the hearing on December 14, 2015, when the schedule loss of use of 55% of the leg was awarded. Although the WCLJ had previously directed the parties to complete Dr. Phillips' deposition by December 5, 2015, Dr. Phillips was not deposed until December 11, 2015. Therefore, the deposition testimony of Dr. Phillips will not be considered.

The record shows that after the total knee replacement surgery, the claimant consistently treated with Dr. Phillips and went to physical therapy, and the claimant's range of motion findings in all the reports remained at approximately 5 to 105 degrees, with the notable exception of the C-4.3. Dr. Phillips credibly stated in his November 11, 2015, report that the C-4.3 contained inaccurate range of motion measurements for the claimant's right leg. Dr. Phillips noted in his report that during the November 11, 2015, examination, he measured the claimant's leg three times using a goniometer, and the claimant's range of motion was 0 to 100 degrees, which was consistent with the claimant's range of motion findings reflected in the progress reports following his total knee replacement surgery.

According to Section 3.2 of the 2012 New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity (2012 Permanency Guidelines), Special Consideration 11, for total knee replacements, in almost all cases, knee flexion is limited to 90-110 degrees, which is equal to 35-40% schedule loss of use. The Full Board finds that based on Dr. Phillips' November 11, 2015, report, claimant has a range of motion of 0 to 100 degrees, and that based on 2012 Permanency Guidelines, a 35% loss of use should be assessed based on loss of range of motion. Further, the Permanency Guidelines provide that 10-15% is added for bone loss. The Full Board finds that 15% should be added to the schedule loss based on bone loss, for a total schedule loss of use award of 50% of the leg.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant has a 50% schedule loss of use of the right leg.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed December 18, 2015, is MODIFIED to find that claimant has a 50% schedule loss of use of the right leg. That decision is affirmed in all other respects. No further action is planned by the Board at this time.