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Workers' Compensation Board

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Case # G0651766
Date of Accident: 08/21/2012
District Office: NYC
Employer: Dept of Correction
Carrier: Police, Fire, Sanitation
Carrier ID No.: W846505
Carrier Case No.: W072-12-81236
Date of Filing of Decision: 02/27/2017
Claimant's Attorney: Rella & Associates PC
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on January 24, 2017, considered the above captioned case for Mandatory Full Board Review.

ISSUE

The issue presented for Mandatory Full Board Review is whether the medical evidence in the record supports awarding the claimant a 50% schedule loss of use (SLU) of the left thumb, and a 45% SLU of the left index finger.

By a Mandatory Full Board Review Full Board Memorandum of Decision filed September 17, 2015, the Full Board referred the case to an impartial specialist in orthopedics to examine the claimant and submit a report on the issue of whether the claimant has a causally related SLU of her left thumb and left index finger. The Full Board noted that both parties were to be granted an opportunity to conduct a cross-examination of the Board's designated impartial specialist, after which the case would be returned to the Full Board for further consideration.

Claimant was examined by impartial orthopedic specialist Dr. Roofeh on December 16, 2015, and Dr. Roofeh was deposed on April 20, 2016. Claimant's attorneys thereafter filed written summations requesting that the Board award claimant a 50% SLU of the left thumb, and a 45% SLU of the left index finger.

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

FACTS

This claim is accepted and established for work-related injuries to the claimant's left index finger, and left thumb, resulting from an accident that occurred on August 21, 2012, while claimant, a corrections officer, was restraining an inmate. No awards were previously made, as the claimant did not lose any time from work.

The claimant treated with the Division of Health Care Access and Improvement Correctional Health Facilities on the date of the accident. The corresponding report indicated that claimant was involved in a use of force in a housing area. The handwritten notes found a superficial scratch to the left index finger and erythema to the left thumb. The area was cleaned with soap and water, and bacitracin and a band aid were applied. The report directed claimant to follow up with a physician/DOC health management division.

At the recommendation of her attorney, the claimant was examined by Dr. Jakobsen, on August 20, 2013, for an SLU opinion, and a corresponding report was issued. Dr. Jakobsen reported a history that the claimant was involved in use of force while working as a corrections officer and twisted her left arm when an inmate pulled away, the claimant is not receiving physical therapy, and she complains of pain and stiffness in the left arm, left thumb, and left index finger. Upon examining the claimant's left thumb, Dr. Jakobsen reported range of motion of the first metacarpophalangeal joint was 30 degrees in flexion, the interphalangeal joint was 45 degrees in flexion, motor strength was 3/5 in extension, and 4/5 in flexion, and no instability. Upon examining the claimant's left index finger, Dr. Jakobsen reported range of motion of the proximal interphalangeal joint was 45 degrees in flexion, the distal interphalangeal joint was 45 degrees in flexion, the metacarpophalangeal joint was 60 degrees in flexion, grip strength was 2/5, positive tenderness, no instability, and motor strength was 3/5 in extension, and 4/5 in flexion. Dr. Jakobsen opined that the claimant had a 50% SLU of the left thumb, and a 45% SLU of the left index finger.

The claimant was examined by the carrier's consultant, Dr. Parisien, on October 24, 2013, and a corresponding report was issued, wherein Dr. Parisien found a 0% SLU to the thumb and index finger.

Dr. Jakobsen testified on February 25, 2014, that he examined the claimant on August 20, 2013. That was the only time he saw the claimant. The claimant reported that while employed as a corrections officer, she was subduing an assaultive inmate, twisted her left arm when the inmate pulled away, and noticed her left fingers were bleeding. The claimant went to the facility clinic and was treated. The claimant was working full time. On the day of the exam the claimant complained of pain and stiffness in the left thumb and left index finger, as well as minor pain in the left arm. The doctor reviewed a copy of a clinical report dated August 21, 2012, although he did not review any other reports or diagnostic studies. The doctor did not know the extent of claimant's treatment but the claimant confirmed that she was not engaged in a program of physical therapy. The doctor did not believe that claimant used a brace or splint and the claimant denied the use of any other medications besides ibuprofen.

The doctor performed a physical examination that day. On examination of the left thumb, the doctor noted passive range of motion at the MCP joint of 30 degrees in flexion with normal being 60 degrees, and 45 degrees at the IP joint with normal being 70 to 80. Motor strength in the thumb was 3 out of 5 in extension and 4 out of 5 in flexion. No instability, edema, or deformity were noted. Examination of the left index finger revealed passive range of motion at the PIP joint of 45 degrees of flexion with normal being 90 degrees. The MCP joint was 60 degrees in flexion with normal being 90. The claimant's grip strength was 2 out of 5, which the doctor described as poor grip. There was tenderness around the index finger but no instability. Motor strength and finger extension was 3 out of 5 and flexion was 4 out of 5. The doctor conducted range of motion testing using a small handheld goniometer. The doctor explained that it is "viewed visually and I will push the patient into their barrier of motion until I meet a firm resistance." Regarding the subjectivity of range of motion testing, the witness testified, "We try to be as objective as possible. There is always a subjective component to it." The doctor performs range of motion testing preferably three times in order to "maintain as much objectivity as possible."

Dr. Jakobsen diagnosed the claimant with a sprain of the left thumb and sprain of the left index finger with residual stiffness, likely due to internal scarring and a joint and capsule injury. Given that it had been one year since the claimant sustained her injury, and there were no recent changes to her condition, he felt that the claimant's injury was stable and amenable to an SLU. He opined that the claimant sustained a 50% loss of use of the left thumb, and 45% loss of use to the left index finger.

By reserved decision filed July 22, 2014, the WCLJ precluded the report of the SIE's consultant, Dr. Parisien, based on the SIE's failure to timely produce the doctor for testimony, and considered only the testimony of the claimant's doctor. The WCLJ noted that the claimant did not lose any time from work, did not seek physical therapy, and did not have any diagnostic studies or any surgery. She wrote, "Under these circumstances it is hard to imagine that the claimant sustained such a high schedule loss of use." The WCLJ found that, although the only report within the file is the claimant's doctor, this report was not credible and, as such, no schedule loss of use is due at this time.

By decision filed January 30, 2015, the majority of the Board Panel, found that based upon the record it was "necessary" to implement the 50% SLU of the left thumb and the 45% SLU of the left index finger and returned the case to the trial calendar for a determination regarding the average weekly wage (AWW) and the implementation of the SLU and any attorney's fee. The dissenting Board Panel member found the opinion of the claimant's consultant to be incredible and that the WCLJ's decision finding no SLU should be affirmed.

By decision filed March 12, 2015, and amended on March 30, 2015, the WCLJ determined that the claimant's AWW was $1,335.72, awarded the claimant a 50% SLU of the left thumb, and a 45% SLU of the left first finger, and awarded the claimant's attorney a fee of $6,915.00.

The Full Board, in a decision filed September 17, 2015, rescinded the July 22, 2014, decision, without prejudice, and referred the case to an impartial specialist based on its determination that although the SIE's consultant was precluded, there were serious issues with the credibility of the opinion of the claimant's consultant.

By decision filed January 5, 2016, the Board Panel rescinded the March 30, 2015, amended decision, based on the September 17, 2015, Full Board decision.

The case was referred to impartial specialist, Dr. Roofeh, who examined the claimant on December 16, 2015, and issued a corresponding report. Dr. Roofeh reported that there was no area of swelling, discoloration, ecchymosis or atrophy, that the claimant can flex the DIP joint to 90 degrees and extend to zero, that the claimant can flex the PIP joint to 100 degrees and extend to zero, that the claimant can flex the MP joint to 90 degrees and extend to zero, that there was no motor or sensory deficit of the left hand index finger or thumb, and all the ranges of motion of the index finger and thumb are normal. Dr. Roofeh concluded,

Examination of the left hand index finger and thumb of [the claimant] did not reveal evidence of any deformity, weakness, stiffness, or loss of range of motion and, except for scar formation on the radial side of the left thumb, there is no evidence of prior injury to the left hand and thumb and there is no scheduled loss of use of the left hand, index finger, and thumb.

Dr. Roofeh testified on April 20, 2016, that he examined the claimant one time, on December 16, 2015. He opined that the claimant had reached maximum medical improvement, and that she has no schedule loss of use. He used the 2012 Impairment Guidelines in rendering his decision. His examination of the claimant's left thumb, left hand, and left index finger were normal, with no positive findings.

LEGAL ANALYSIS

In evaluating the medical evidence presented, the Board is not bound to accept the testimony or reports of any one expert, either in whole or in part, but is free to choose those it credits and reject those it does not credit (see Matter of Morrell v Onondaga County, 238 AD2d 805 [1997], lv denied 90 NY2d 808 [1997]; Matter of Wood v Leaseway Transp. Corp., 195 AD2d 622 [1993]). Thus, questions of credibility, reasonableness, and relative weight to be accorded to conflicting evidence are questions of fact that come within the exclusive province of the Board (see Matter of Berkley v Irving Trust Co., 15 AD3d 750 [2005]).

Here, the claimant initially treated on the date of accident, and the corresponding report indicated a superficial scratch on her left index finger, and erythema or redness on the left thumb. The claimant was treated with soap and water, bacitracin, and a Band-Aid. Thereafter, the claimant did not receive any further treatment or physical therapy. The claimant continued to work full duty without incurring any lost time.

At the recommendation of her attorney, the claimant was examined by Dr. Jakobsen, who incredibly opined that the claimant had a 50% SLU of the left thumb, and a 45% SLU of the left index finger. During testimony, Dr. Jakobsen conceded that there was no instability, edema, or deformity noted to either site of injury. Dr. Jakobsen also conceded that the claimant's range of motion could be subjective.

The Board's impartial specialist, Dr. Roofeh, opined that there is no evidence of prior injury to the claimant's left hand and thumb, and there is no schedule loss of use of the left hand, index finger, and thumb. Dr. Roofeh noted that his examination of the claimant's left thumb, left hand, and left index finger were normal, with no positive findings.

Therefore, the overwhelming preponderance of the evidence in the record supports a finding that the claimant is not entitled to an SLU award.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed July 22, 2014, is AFFIRMED. The WCLJ decision filed March 12, 2015, and amended on March 30, 2015, is REVERSED. The claimant is not entitled to an SLU award. No further action is planned by the Board at this time.