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Workers' Compensation Board

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Case # G1028651
Date of Accident: 10/01/2013
District Office: NYC
Employer: Police Department
Carrier: Police, Fire, Sanitation
Carrier ID No.: W846505
Carrier Case No.: W0561309178
Date of Filing of Decision: 08/03/2017
Claimant's Attorney: Rubin Abramson LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on July 18, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed December 9, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant had a 17.5% schedule loss of use of the right leg.

The Workers' Compensation Law Judge (WCLJ) found the claimant had a 35% schedule loss of use.

The Board Panel majority modified the WCLJ decision, finding the claimant had a 17.5% schedule loss of use of the leg.

The dissenting Board Panel member would find that the claimant has a 22.5% schedule loss of use.

The claimant filed an application for Mandatory Full Board Review on December 22, 2016, urging the Full Board to accept the opinion of Dr. Huish that the claimant had a 35% schedule loss of the right leg. In the alternative, the claimant requests that the opinion of the dissenting Board Panel member be adopted.

The self-insured employer filed a rebuttal on January 23, 2017, asking that the opinion of the Board Panel majority remain undisturbed.

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

FACTS

The claimant suffered a work-related injury to the right leg on October 1, 2013. In the first C-4 (Doctor's Initial Report) dated August 25, 2014, for an examination held on August 11, 2014, the claimant's treating physician, Dr. Huish, noted the claimant reported stiffness in the right knee with intermittent swelling, and flexion to 115 degrees. Dr. Huish also indicated the claimant was working full duty.

An MRI of claimant's right knee was taken on March 2, 2015, and revealed synovial effusion in the knee joint, lateral patellar tilt and lateral patellar subluxation with patellofemoral chondromalacia and narrowing of the lateral patellofemoral joint compartment.

By a C-4.2 (Doctor's Progress Report) dated March 16, 2015, for an examination held on February 24, 2015, Dr. Huish reported the claimant's flexion of the right knee was 110 degrees. By a C-4.2 dated April 16, 2015, for an examination held on March 24, 2015, Dr. Huish reported the claimant's flexion was 107 degrees, and prescribed physical therapy for the claimant. By C-4.2 dated May 14, 2015, for an examination held on April 27, 2015, Dr. Huish reported the claimant's flexion was 105 degrees.

A physical therapy note dated April 28, 2015, attached to a C-4.2 by Dr. Huish dated May 14, 2015, indicates that the claimant's physical therapist reported the claimant's flexion was within normal limits.

By a C-4.2 a dated July 27, 2015, for an examination held on July 14, 2015, Dr. Huish reported the claimant's flexion was 115 degrees, and he recommended the claimant continue with physical therapy. By a C-4.2 dated August 20, 2015, for an examination on August 11, 2015, Dr. Huish reported the claimant's flexion was 120 degrees, and indicated the claimant "has made significant clinical and functional progress of late."

By C-4.3 (Doctor's Report of MMI/Permanent Impairment) dated September 29, 2015, for an examination held on September 21, 2015, Dr. Huish opined the claimant had reached maximum medical improvement, and reported the claimant's flexion was 115 degrees with full extension, with weakness at the quadriceps, flattening of the vastus medialis, and weakness of the adductor. Dr. Huish diagnosed right knee derangement, aggravation of right knee osteoarthritis, right knee patellofemoral syndrome and right knee patella tendinitis. Based on the 2012 Permanency Guidelines, along with the claimant's "persistent residuals including her examination findings and review of her MRI study as previously outlined," Dr. Huish determined the claimant had a 35% schedule loss of use of the right leg.

By a Notice of Proposed Decision dated November 24, 2015, the Board noted the claimant submitted a permanency report dated September 29, 2015, which provided a 35% schedule loss of use of the right leg, directed the self-insured employer (SIE) to indicate whether it would accept Dr. Huish's findings, and further directed the SIE to obtain an IME within 90 days or the right to obtain an IME would be waived. The Proposed Decision became final on December 29, 2015.

By RFA-1LC dated March 15, 2016, the claimant's counsel requested a hearing to determine permanency and noted the SIE did not file an objection to the Proposed Decision dated November 24, 2015.

At a hearing held on June 28, 2016, the WCLJ found the SIE waived the right to obtain an IME and that the claimant had a 35% schedule loss of use of the right leg based on the C-4.3 of Dr. Huish, and awarded claimant's attorneys a fee of $8,550.00. The findings were memorialized in a Notice of Decision filed July 7, 2016.

The SIE filed an application for administrative review contending that Dr. Huish's C-4.3 was not credible because according to Section 3.2 of the 2012 Permanency Guidelines, the claimant's flexion of 115 degrees would warrant a 15% SLU, instead of a 35% schedule award. The SIE also noted that the remainder of Dr. Huish's findings did not support any additional schedule loss, and highlighted the physical therapy report dated April 28, 2015, wherein the claimant's flexion was reported within normal limits. The SIE noted that the claimant never missed any time from work, and only underwent conservative care nearly 15 months after the accident before obtaining an MRI and the C-4.3. As such, the SIE argued the WCLJ's finding that the claimant had a 35% schedule loss of use of the leg was not supported by the medical evidence.

The claimant filed a rebuttal maintaining that the SIE's appeal should be denied because it was untimely.

LEGAL ANALYSIS

Nature of Schedule Loss of Use

A schedule loss of use award does not compensate an injured worker for pain and suffering (Parchefsky v Kroll Bros., 242 AD 346 [1934], rev'd on other grounds 267 NY 410 [1935]), and "does not represent damages for the loss of a finger, hand, foot or other member but, instead, 'the award is to compensate for loss of earning power' (Matter of Marhoffer v Marhoffer, 220 NY 543, 546-547)" (Matter of Fox v Crosbie-Brownlie Inc., 284 AD2d 42 [2001]; see also Matter of LaCroix v Syracuse Exec. Air Serv., Inc., 8 NY3d 348 [2007]). Unlike other workers' compensation awards, the amount of a schedule award is "independent of the time an employee actually loses from work," and is instead "fixed at a statutorily prescribed number of weeks of compensation" (Landgrebe v County of Westchester, 57 N.Y.2d 1 [1982]).

A medical opinion on schedule loss of use should be based on an injured worker's "residual permanent physical and functional impairments[,]" rather than on the injury sustained (2012 NYS Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity [2012 Impairment Guidelines], p. 10). Therefore, the amount of a schedule award is not determined until the injured worker has "reached maximum medical improvement" (id.; see also Matter of Grugan v The Record, 84 AD3d 1648 [2011]). Maximum medical improvement occurs when "(a) the claimant has recovered from the work injury to the greatest extent that is expected and (b) no further improvement in his/her condition is reasonably expected" (2012 Impairment Guidelines, p. 8).

Ultimately, the amount of a schedule loss of use award is a legal determination made by the Board based on the medical evidence of residual physical and functional impairment, considered in consonance with the Impairment Guidelines, as well as other evidence relevant to the claimant's prospective loss of earning power (see Matter of Marhoffer v Marhoffer, 220 NY 543 [1917]). The 2012 Impairment Guidelines assist medical experts in determining the residual physical and functional impairments relevant to determine schedule loss of use. The Board also has the authority to establish guidelines setting forth the criteria and evidence relevant to determining a claimant's prospective loss of earning power which, considered along with the medical evidence in the record, the Board will consider when making a schedule award.

"Though the Board may not fashion its own expert medical opinions, it may reject medical evidence as incredible or insufficient even where...no opposing medical proof is presented" (Matter of Jaquin v Community Covenant Church, 69 AD3d 998 [2010] [citations omitted]). Whether a claimant is entitled to a schedule loss of use award, and the amount of the award, is ultimately the decision of the Board, and the Board is not bound to adopt the conclusion reached by a medical expert with respect to the amount (percentage) of the schedule award, even when the expert's opinion is the only one in the record (see Matter of Kondylis v Alatis Interiors Company, Ltd., 116 AD3d 1184 [2014]). The Board is "free to reject all or part of the medical evidence offered" (Matter of Wood v Leaseway Transp. Corp., 195 AD2d 622 [1993]).

Record in this Claim

In this case, as no evidence has been produced concerning how claimant's permanent impairment has affected her ability to work over the course of her lifetime, resulting in loss of earnings, the Board must determine claimant's schedule loss of use award solely on the medical evidence. The only opinion on schedule loss of use is by Dr. Huish, who found that the claimant had a 35% schedule loss of use of the right leg. However, both the Board Panel majority and the dissenting Board Panel member agreed that Dr. Huish's findings with respect to claimant's residual physical and functional impairment, when considered in consonance with the Impairment Guidelines, did not support the doctor's conclusion that claimant had a 35% schedule loss of use of the right leg. The Full Board agrees.

The 2012 Impairment Guidelines provide loss of use percentages for various range of motion deficits in the knee. Flexion to 120 degrees equates to a loss of 7.5% to 10%, while flexion to 110 degrees equates to a 20% loss. Thus, flexion to 115 degrees falls in between a 10% and 20% loss. The 2012 Impairment Guidelines also set forth various "Special Considerations" for the knee. In particular, chondromalacia patella, mild to moderate in degree, warrants adding an additional 7.5% to 10% loss, depending on the defections of motion and atrophy of muscles found.

In his C-4.3, Dr. Huish reported the claimant's flexion was 115 degrees with full extension, with weakness at the quadriceps, flattening of the vastus medialis, and weakness of the adductor. Dr. Huish diagnosed right knee derangement, aggravation of right knee osteoarthritis, right knee patellofemoral syndrome and right knee patella tendinitis. Based on the findings reflected in Dr. Huish's C-4.3, the dissenting Board Panel member found that claimant had a 15% schedule loss of leg due to her flexion deficit and an additional 7.5% based on chondromalacia patella, for a total schedule loss of use award of 22.5% of the right leg.

The Board Panel majority found that that because Dr. Huish had reported that claimant had flexion of the right knee to 120 degrees on August 11, 2015, and that an April 28, 2015, physical therapy note indicated that the range of motion of claimant's right knee was within normal limits, the later finding in Dr. Huish's C-4.3 that claimant had flexion of the right knee to 115 degrees when examined on September 21, 2015, was not credible. The majority found instead, based on Dr. Huish's earlier report on August 11, 2015, that claimant had flexion of the right knee to 120 degrees which would warrant a 10% schedule loss of use of the leg, and a total schedule award of 17.5% of leg after adding 7.5% based on claimant's chondromalacia patella.

While the Board Panel majority clearly had the authority to find, based on the record as whole, that Dr. Huish's finding that claimant had flexion to 115 degrees was not credible, the Full Board nonetheless finds the residual physical and functional impairment findings reflected in Dr. Huish's C-4.3 to be credible. That report was based on a September 21, 2015, examination at which point claimant had reached maximum medical improvement. The express purpose of that examination was to evaluate claimant's residual physical and functional impairments at the time she had reached maximum medical improvement, and to render an opinion concerning schedule loss of use based on that evaluation. The Full Board finds that the earlier range of motion findings by Dr. Huish were not so discrepant from that reported in the doctor's C-4.3 to suggest that the later finding is not credible.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant has a 22.5% schedule loss of use award of the right leg, with 15% based on Dr. Huish's finding that claimant had flexion of the right knee to 115 degrees, and 7.5% based on claimant's residual chondromalacia patella. The Full Board further finds that a fee of $4,000.00 claimant's attorneys is warranted.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed July 7, 2016, is MODIFIED to find that the claimant has a 22.5% SLU of the right leg and to grant an attorney's fee of $4,000.00. No further action is planned by the Board at this time.