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Case # G0757193
Date of Accident: 11/15/2013
District Office: Syracuse
Employer: SUNY Syracuse Hospital
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 66806548 67
Date of Filing of Decision: 02/13/2018
Claimant's Attorney: Fine Olin & Anderman PC
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on December 19, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed April 10, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is claimant's loss of wage earning capacity (LWEC).

The Workers' Compensation Law Judge (WCLJ) found that the claimant had a 66.66% LWEC.

The Board Panel majority modified the WCLJ decision to find that the claimant has a 50% LWEC.

The dissenting Board Panel member would affirm the WCLJ decision.

The claimant filed an application for Mandatory Full Board Review on April 17, 2017, arguing that the 66.66% LWEC found by the WCLJ was reasonable and should not be disturbed.

The carrier filed a rebuttal on May 16, 2017, arguing that the Board Panel majority properly found that the claimant had a 50% LWEC.

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

FACTS

This case is established for an occupational disease to the neck and for bilateral hands with a date of disablement of November 15, 2013. The claim was subsequently amended to include aggravations to the right second finger and the right third finger. The claimant's weekly wage was set at $838.87.

In a C-4.3 based on a July 6, 2005, examination, claimant's treating orthopedic surgeon, Dr. Loftus, found that claimant had a 25% schedule loss of use (SLU) of the left small finger, a 45% SLU of the right index finger, a 45% SLU of the left middle finger and a 45% SLU of the "left right finger" (sic). In an attached narrative, Dr. Loftus indicated that he had fused the DIP joints on claimant's right index finger, left middle finger and left ring finger. Dr. Loftus stated that claimant "is doing quite well from her DIP joint fusions but does have pain at multiple other joints. Yet from a disability point of view I think we're just dealing with the DIP joint fusions. She has 5 pounds of pinch strength on both hands and her grip strength is 20 pounds on the left side and 19 on the right side. She has virtually no tenderness over the joints that have been fused."

Dr. Hausmann, the carrier's orthopedic surgeon consultant, examined the claimant on September 28, 2015. In his IME-4 report, Dr. Hausmann indicated that the claimant provided a history of arthritis, a left MP joint fusion in the thumb, multiple fusions in the DIP joints, long and ring finger DIP joint fusion in the left hand, and index finger fusion in the right hand. The claimant complained of pain and stiffness as well as weakness in the hands. She was able to drive, she did housework in small amounts, she was unable to sew or knit, and she retired on June 30, 2015. Dr. Hausmann diagnosed the claimant with aggravated cervical degenerative disc disease and multiarticular arthritis in both hands. The doctor opined that the claimant had reached maximum medical improvement (MMI), had limited mobility in multiple digits, and had effusion in the index finger of the right hand. The doctor opined that the claimant's loss of mobility of the fingers on her right hand would add up to 145% and convert to a 35% SLU of the right hand. Dr. Hausmann opined that the claimant's fusions in the left finger, left ring finger, MP joint of the left thumb would add up to 225% and convert to a 50% SLU of the left hand. The doctor opined that the claimant's cervical spine had a medical impairment class 3, severity ranking B for degenerative disc disease, and apportionment of 50% to arthritis and 50% to her occupational injuries.

Dr. Dong, the claimant's treating physician, submitted medical reports to the Board on March 7, 2016, and March 17, 2016, and diagnosed the claimant with spinal stenosis, myalgia, and spondylosis with myelopathy. The doctor opined that claimant had reached MMI and had a 25% impairment.

The claimant filed a VDF-1 form (Loss of Wage Earning Capacity Vocational Data Form) with the Board on March 14, 2016, indicating that she was 63 years old, had graduated from high school, had worked as a Licensed Practical Nurse (LPN), and that she spoke, read, and wrote English well.

The claimant testified at a hearing on May 2, 2016, that she retired on June 30, 2015, from the outpatient clinic where she had worked because she couldn't work anymore as an LPN. She had worked as an LPN for 30 years. The claimant testified that she earned her LPN at a technical high school and she did not have any other education. For her neck, her doctor restricted her to eight pounds lifting and tens pounds pushing and pulling. She had very little strength in her hands, she drops things, she isn't able to use the computer because of the pain and her limited finger mobility due to her fusion surgeries, but she did use an iPad. She looked for work following her retirement. Sitting or standing for any length of time bothered her due to her neck. She had worked up to retirement.

At the conclusion of the May 2, 2016, hearing, the WCLJ found that pursuant to the opinion of Dr. Hausmann, the claimant had a Class 3, B severity ranking for her neck and a 50% SLU of the left hand. The WCLJ does not appear to have considered Dr. Loftus' C-4.3. The WCLJ concluded that the claimant had a 66.66% LWEC because her age was an aggravating factor, but some of her LPN job functions could transfer into a sedentary type capacity. These findings were memorialized in a notice of decision filed on May 5, 2016.

In the carrier's application for administrative review, it argued that the evidence supports a 25% LWEC finding and the WCLJ erred by not making a specific wage-earning capacity finding or medical impairment finding.

The claimant argued in rebuttal that the WCLJ decision in regards to the claimant's LWEC is fully supported by the facts and the law and should be affirmed.

LEGAL ANALYSIS

For a permanently partially disabled claimant, LWEC is an evidentiary determination based on the claimant's medical impairment and functional abilities, as well as vocational and other non-medical factors. 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.

Any determination as to LWEC must be consistent with the provisions of the Workers' Compensation Law (WCL). There is a distinction between impairment and disability. Impairment is a medical condition while a claimant's disability or loss of wage earning capacity is a legal determination.

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 LWEC, the medical impairment rating is not to be used as a direct translation to LWEC (see e.g. Matter of Patchogue-Medford School Dist., 2011 NY Wrk Comp 40803044).

In calculating a permanently partially disabled claimant's LWEC, pursuant to WCL 15(3)(w), the "loss of wage earning capacity" must be determined upon a preponderance of the evidence in the record concerning the nature and degree of the work-related permanent physical and/or mental impairment, work restrictions, claimant's age, and any other relevant factors (Matter of Cameron v Crooked Lake House, 106 AD3d 1416 [2013]; see also Board's Medical Guidelines [June 1996 Edition]).

Dr. Hausmann opined that the claimant had a class 3, severity ranking B impairment of her cervical spine, and that her hand conditions were amenable to a 35% SLU of the right hand and a 50% SLU of the left. Dr. Dong opined that claimant had a 25% impairment. Dr. Loftus found that claimant's hand conditions were amenable to multiple SLUs of her digits. Dr. Loftus noted that claimant was "doing quite well from her DIP joint fusions [,] and that from a disability point of view I think we're just dealing with the DIP joint fusions." Dr. Loftus found that claimant had "5 pounds of pinch strength on both hands and her grip strength is 20 pounds on the left side and 19 on the right side." Dr. Loftus' C-4.3, Dr. Hausmann's IME-4, and Dr. Dong's reports fail to note any specific vocational restrictions.

The record reflects that at the time of classification, the claimant was 63 years old, has a high school education, had worked as an LPN for 30 years, and is proficient in English. The Full Board finds that these vocational factors, when considered in conjunction with her physical impairment, support a finding that she has a 60% LWEC.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed May 5, 2016, is MODIFIED to find that claimant has a 60% LWEC. The decision is otherwise AFFIRMED. No further action is planned at this time.