Skip to Content

Workers' Compensation Board

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

 


Case # G0580781
Date of Accident: 04/11/2012
District Office: NYC
Employer: Wyckoff Heights Medical Center
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 65579088
Date of Filing of Decision: 05/19/2017
Claimant's Attorney: Howard A Kornfeld Law Offices
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 May 13, 2016.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. the claimant's loss of wage earning capacity (LWEC); and
  2. whether awards should be rescinded.

The Workers' Compensation Law Judge (WCLJ) found that claimant had a 75% LWEC and made awards.

The Board Panel majority affirmed the WCLJ decision.

The dissenting Board Panel member would find that claimant has a 50% LWEC.

The carrier filed an application for Mandatory Full Board Review on June 10, 2016, arguing that claimant's LWEC should be found to be no more than 50% and that awards be rescinded.

The claimant did not file a timely rebuttal.

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

FACTS

On April 11, 2012, claimant, a medical doctor specializing in urology, was performing surgery when he began experiencing chest pain and felt ill. When the surgery was completed, claimant sought treatment in the emergency room and it was determined that he had suffered a heart attack. This claim is established for myocardial infarction (MI) and unstable angina. Claimant's average weekly wage was set at $2,733.57.

In a letter dated April 30, 2012, claimant's treating cardiologist, Dr. Chadda, stated, "I recommend that in the indefinite future [claimant] not perform surgical procedures." In a December 28, 2012, letter, Dr. Chadda stated that "despite several aborted efforts to perform surgery, [claimant] is permanently and significantly limited in the most minimal surgical work activity as a direct result of the coronary accident of 04-11-12. This has adversely affected his ability to work as a surgeon and curtailed his earning capacity. His disability is permanent and he is markedly disabled from surgical work."

Upon Dr. Chadda's retirement, claimant began treating with cardiologist Dr. Campagna. In an October 31, 2014, letter, Dr. Campagna stated that since his April 2012 MI, claimant has been "unable to take call in the hospital, and currently works part time, taking care of patients on an out-patient basis."

Claimant was examined by the carrier's consultant, Dr. Brief, on December 9, 2014. In his report, Dr. Brief states that since his April 2012 MI, claimant has frequent episodes of chest pain and that because of his symptoms, he could not return to full duty work and has "confined himself to half time office practice." Dr. Beach reported that claimant suffered another MI in September 2014 and had a coronary stent implanted. Dr. Brief concluded that the claimant had reached maximum medical improvement, had a moderate permanent partial disability and "should be able to continue his part-time employment in an outpatient urology practice."

Claimant did not obtain a medical opinion on the issue of permanency.

Claimant testified at a hearing on August 25, 2015, that he is 73 years old, graduated from Chicago Medical School and specializes in the field of urology. At the time of his work-related MI in April 2012, his primary job was at the hospital, but he also "had a small part-time practice across from the hospital" (p. 7). He twice attempted to perform surgery after the MI, but on both occasions he "had chest pain and another doctor had to take over. And that was it. I went to the doctors and they said no more surgery for you. The majority of my income came from surgery" (p. 8). His treating cardiologists, Dr. Campagna, Dr. Chadda and Dr. Moses, told him not to perform surgery any more. He had performed emergency surgery for 35 years. When asked what he did at the hospital aside from surgery, claimant responded, "I was making rounds on patients. I saw patients but everything was geared toward surgery. If you came in with a kidney stone attack, I took you to the operating room" (p. 9).

On cross-examination, claimant testified that he currently sees seven or eight patients per day and he is a very good diagnostician. If a patient requires surgery, he refers them to a surgeon. He performs bladder examinations "with a telescope" (p. 12), performs rectal exams and prescribes some medications.

The WCLJ, in a decision filed August 11, 2015, classified claimant with a permanent partial disability, found that he was capable of performing work with less than sedentary physical demands, and that he has a 75% LWEC. The WCLJ made tentative reduced earnings awards at the rate of $500.00 per week from January 1, 2015, forward.

The carrier requested administrative review of the WCLJ decision arguing that claimant's LWEC should be found to be no more than 50% and that awards be rescinded "pending claimant's production of his earnings and medical evidence that any potential loss of earnings is directly due to claimant's disability and not other factors."

LEGAL ANALYSIS

LWEC

For a claimant with a date of accident/disablement on or after March 13, 2007, WCL 15(3)(w) limits the number of maximum benefit weeks payable for a non-schedule permanent partial disability. "In order to fix the duration of benefits in cases such as this, where a claimant sustains a permanent partial disability that is not amenable to a schedule award, the Board must determine the claimant's loss of wage-earning capacity. In so doing, the Board relies upon various factors in making that determination, including the nature and degree of the work-related permanent physical and/or mental impairment, work restrictions and [the] claimant's age" (Matter of Smith v New York City Hous. Auth., 147 AD3d 1184 [2017]).

Here, the carrier's IME, Dr. Brief, concluded that the claimant had reached maximum medical improvement, had a moderate permanent partial disability and "should be able to continue his part-time employment in an outpatient urology practice." Claimant had worked for many years as an urologist and at the time of his work-related MI in April 2012, his primary job was at the hospital, but he also "had a small part-time practice across from the hospital." The record reflects that as a result of his work-related MI, claimant was unable to continue to work for the employer, a hospital, because he could no longer perform surgery, although he continued to work in his part-time practice. Claimant testified that the majority of his income had come from surgery, which is corroborated by the evidence of his post-injury income. It is clear that performing surgery was critical to claimant's ability to perform his pre-injury employment at the hospital. He can no longer perform surgery due to his work-related disability and as a direct result, he can no longer work at the hospital where he was previously employed for over 20 years, resulting in a significant loss of income. While the record reflects that claimant retains the ability to perform sedentary work and continues to work part-time in his outpatient urology practice, his inability to perform surgery has nonetheless resulted in a significant loss of wage earning capacity.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant has a 75% LWEC.

Awards

Subsequent to the filing of the carrier's application for Mandatory Full Board Review, claimant submitted evidence of his 2015 income. The WCLJ, in a decision filed October 21, 2016, made reduced earnings awards from January 1, 2015, to the January 1, 2016, at the rate of $772.96 per week and directed the carrier to continue payments at the $500.00 tentative rate. The carrier did not request review of that decision. Therefore, the issue of awards raised in the carrier's application for Mandatory Full Board Review is moot.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed August 11, 2015, is AFFIRMED. No further action is planned by the Board at this time.