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Workers' Compensation Board

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Case # G0978443
Date of Accident: 10/30/2013
District Office: Albany
Employer: Blue Flame Gas Co Inc
Carrier: HDI Global Insurance Company
Carrier ID No.: W102503
Carrier Case No.: EFDW-1420
Date of Filing of Decision: 07/19/2017
Claimant's Attorney: Martin, Harding & Mazzotti LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on June 20, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed June 3, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether claimant has a 47.5% schedule loss of use (SLU) of the left arm.

The Workers' Compensation Law Judge (WCLJ) awarded claimant a 47.5% SLU of the left arm.

The Board Panel majority affirmed the WCLJ decision.

The dissenting Board Panel member would require further development of the record before an SLU is awarded.

The carrier filed an application for Mandatory Full Board Review on July 5, 2016, requesting that the SLU be rescinded and the matter returned to the trial calendar for medical testimony on the issue of proper SLU percentage. The carrier asserts that awarding the SLU without further development of the record "was an egregious denial of the carrier's due process rights..."

The claimant filed a rebuttal on August 1, 2016, requesting that the decisions of the WCLJ and the Board Panel majority be affirmed.

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

FACTS

On October 30, 2013, claimant, a propane delivery driver, injured his left shoulder moving a propane tank. The carrier accepted liability for the claim. Claimant underwent left shoulder arthroscopy, subacromial decompression, and Mumford resection of the distal clavicle performed by his treating physician, Dr. Saunders, on April 30, 2014. Dr. Saunders' post-surgical diagnosis was left shoulder impingement syndrome and partial thickness articular sided tear of the supraspinatus tendon.

In a July 1, 2014, report, Dr. Saunders released claimant to return to work on July 7, 2014, and noted that claimant had no obvious instability and a nearly full range of motion in his left shoulder.

In an October 14, 2014, report, Dr. Saunders noted that claimant's left shoulder showed instability, had forward flexion to 120 degrees, and abduction to 100 degrees "with pain at endpoints."

In a C-4.3 (Doctor's Report of MMI/Permanent Impairment) based on a May 15, 2015, examination, Dr. Saunders found that claimant had reached maximum medical improvement and had a 47.5% SLU of the left arm. Dr. Saunders noted that claimant's symptoms had improved since his surgery, but he still experienced mild pain (2 on a 1-10 scale) which was aggravated by overhead activities and weather changes. Claimant had returned to full duty work.

On examination, Dr. Saunders noted instability of the claimant's left shoulder and found with respect to the range of motion of his left shoulder: "forward flexion to 120 degrees. Abduction to 110 degrees. Rotation is full, symmetric bilaterally. Adduction is symmetric and full. Posterior extension to 65 degrees." Dr. Saunders concluded that claimant had a 47.5% SLU of the left arm consistent with the Board's 2012 Impairment Guidelines by assessing 10% for bone loss, 7.5% for posterior extension and 30% for abduction.

Claimant was examined by the carrier's consultant, Dr. Petroski, on July 22, 2015. In his IME-4 (Practitioner's Report of Independent Medical Examination), Dr. Petroski found with respect to the range of motion of claimant's left shoulder that he had internal rotation to 70 degrees (with 80 degrees being normal), and that abduction, adduction, forward flexion, extension, and external rotation were all normal. Dr. Petroski concluded that claimant had "a 17.5% SLU in relation to the left shoulder (7.5% for decreased internal rotation and 10% for distal clavicle resection)."

The Board scheduled a hearing for November 20, 2015, to consider, among other things, the "Question of Permanency" (see Notice of Compensation Hearing dated October 27, 2015). The carrier did not appear at the November 20, 2015, hearing. The WCLJ, after establishing the claim for the left shoulder and setting claimant's average weekly wage at $666.82, stated to claimant's attorney, "And I would imagine I am implementing the medical opinion of your doctor for schedule loss of use?[,]" to which claimant's attorney responded, "Correct. We are relying on the opinion of Dr. Saunders. He gives a 47.5% percent loss of use of the left arm" (transcript, 11/20/15 hearing, p. 3). After noting the findings and conclusions set forth in Dr. Saunders' report, the WCLJ stated that "since I don't have the carrier here to pursue or argue on their own behalf regarding Dr. Petroski's IME, which did find a 17.5 percent schedule loss use, I will find the 47.5% schedule loss of use" (id. at p. 4). The WCLJ awarded claimant a 47.5% SLU of the left arm equal to 148.2 weeks of benefits and 3.2 weeks of benefits due to protracted healing period. The WCLJ awarded claimant's attorneys a fee of $7,000.00 payable out of the SLU. The findings and awards made at the November 20, 2015, hearing are reflected in a decision filed November 25, 2015.

The carrier sought administrative review of the WCLJ's November 25, 2015, decision, asserting that its failure to attend the November 20, 2015, hearing was "[d]ue to an administrative oversight" and arguing that it was premature to award an SLU without permitting the carrier to develop the record with the testimony of Dr. Saunders and Dr. Petroski. The carrier asserted that it had been denied due process. The carrier further argued that the WCLJ erred in awarding a 47.5% SLU of the left arm based on Dr. Saunders' opinion without considering the opinion of Dr. Petroski.

In rebuttal, claimant argued that the WCLJ properly awarded the SLU without further development of the record based on the carrier's failure to appear at the November 20, 2015, hearing and requested that the WCLJ's November 25, 2015, decision be affirmed.

LEGAL ANALYSIS

Further Development/Due Process

The carrier's contention that it should be permitted the opportunity to develop the record with the testimony of Dr. Saunders and Dr. Petroski and that the Board's failure to permit the carrier to do so constituted a denial of due process, is wholly without merit.

The Workers' Compensation Board must "comply with basic elements of due process" (Matter of Hailoo v State Ins. Fund, 45 AD3d 1200 [2007]). Due process requires that a party be given notice and an opportunity to be heard (see Matter of Novara v Cantor Fitzgerald, LP, 20 AD3d 103 [2005], lv denied, 5 NY3d 710 [2005]; see also Matter of County of Chemung v Shah, 28 NY3d 244 [2016]).

"A party clearly has the right to cross-examine medical experts. The failure to exercise the right in a timely fashion, however, may result in a waiver of the right" (Matter of Floyd v Millard Fillmore Hosp., 299 AD2d 610 [2002][internal citations omitted]). Thus, in Floyd, the Court found that the Board Panel properly refused the employer's request that it be permitted to cross-examine claimant's treating physician when the employer did not make that request during the underlying hearing before the WCLJ (id.; see also Matter of McKenzie v UJA-FED, 47 AD3d 1181 [2008]).

Here, there is no question that the carrier received notice of the November 20, 2015, hearing. The carrier states in its application for Mandatory Full Board Review that, "[d]ue to an administrative oversight, the carrier inadvertently failed to attend the hearing held on 11/20/15." Had the carrier been present at the hearing, it could have requested the opportunity to cross-examine the claimant's treating physician, Dr. Saunders, and the matter would have been continued for that purpose. The carrier, however, did not appear at the hearing and it is ludicrous to suggest that the WCLJ should have continued the case for medical testimony in the absence of a request to do so by either party.

Schedule Loss of Use

In its application for Mandatory Full Board Review, the carrier argues that the transcript of the November 20, 2015, hearing "clearly demonstrates that the Law Judge did not in any way, shape or form make a carefully considered decision on the issue of causally related permanency considering all of the medical evidence in the record."

"The Board is entitled to make its own factual findings and is not bound by the credibility determinations of a WCLJ (see Matter of Ortiz v Five Points Correctional Facility, 307 AD2d 634, 635, 762 NYS2d 535 [2003])" Matter of Jones v New York State Dept. of Correction, 35 AD3d 1025 [2006]. Regardless of the basis of the WCLJ's decision, on review, the Full Board has the authority to review the record, make factual findings, and determine the appropriate SLU in this matter.

The carrier's consultant, Dr. Petroski, examined claimant on July 22, 2015, and found that claimant had internal rotation to 70 degrees (with 80 degrees being normal), and that abduction, adduction, forward flexion, extension, and external rotation of his left shoulder were all normal. Dr. Petroski concluded that claimant had "a 17.5% SLU in relation to the left shoulder (7.5% for decreased internal rotation and 10% for distal clavicle resection)."

The claimant's treating physician, Dr. Saunders, examined the claimant on May 15, 2015, and found that claimant had instability of the left shoulder, abduction to 110 degrees, and posterior extension to 65 degrees." Dr. Saunders concluded that the claimant had a 47.5% SLU of the left arm consistent with the Board's 2012 Impairment Guidelines by assessing 10% for bone loss, 7.5% for posterior extension, and 30% for abduction.

In its application for Mandatory Full Board Review, the carrier noted that in his July 1, 2014, report, Dr. Saunders indicated that claimant had nearly full range of motion in his left shoulder, which contradicts the findings reflected in the doctor's C-4.3. However, a review of the record reflects that in a subsequent report, based on an October 14, 2014, report, Dr. Saunders found that claimant's left shoulder had forward flexion to 120 degrees and abduction to 100 degrees "with pain at endpoints." These findings were entirely consistent with those reflected in the C-4.3. Had the carrier been present at the November 20, 2015, hearing, it could have requested the opportunity to cross-examine Dr. Saunders about this purported discrepancy, but having failed to appear, the carrier waived its right to cross-examine Dr. Saunders.

The opinions of Dr. Saunders and Dr. Petroski are in stark contrast with respect to the range of motion of claimant's left shoulder and the appropriate SLU. Dr. Saunders was claimant's treating surgeon and the range of motion findings reflected in the doctor's C-4.3 are consistent with the finings reflected months earlier, in the doctor's October 14, 2014, report, during a follow up appointment. Dr. Petroski examined claimant on one occasion for the sole purpose of offering an SLU opinion at the request of the carrier. The Full Board, therefore, finds that the findings and conclusions set forth by Dr. Saunders in his C-4.3 are credible, and that claimant's injury is amenable to a 47.5% SLU of the left arm.

Therefore, the Full Board finds that the preponderance of the credible evidence in the record supports a finding that claimant has a 47.5% SLU of the left arm.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed November 25, 2015, is AFFIRMED. No further action is planned by the Board at this time.