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Workers' Compensation Board

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Case # G0568813
Date of Accident: 05/04/2012
District Office: NYC
Employer: County of Nassau
Carrier: County of Nassau
Carrier ID No.: W840003
Carrier Case No.: NCS12144
Date of Filing of Decision: 07/19/2017
Claimant's Attorney: Sharon A. Macari, PC
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 November 22, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is the proper schedule loss of use (SLU) for the claimant's right arm.

The Workers' Compensation Law Judge (WCLJ) found the claimant had a 50% SLU of the right arm.

The Board Panel majority modified the WCLJ decision to find that the claimant had a 15% SLU of the right arm.

The dissenting Board Panel member would affirm the WCLJ's finding that claimant had a 50% SLU of the right arm.

The claimant filed an application for Mandatory Full Board Review on December 22, 2016, urging the Full Board to adopt the findings and decision of the dissenting Board Panel member.

The self-insured employer filed a rebuttal on January 16, 2017, arguing that the decision of the Board Panel majority should be affirmed.

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

FACTS

In a C-2 (Employer's Report of Work Related Injury/Illness) report dated May 30, 2012, the claimant's employer reported the claimant, a corrections officer, sustained a work-related injury on May 4, 2012, when he injured his head, right arm and right shoulder restraining an inmate.

A May 15, 2012, MRI of claimant's right shoulder revealed supraspinatus tendinosis with minimal partial thickness fraying bursal surface but no evidence of full thickness rotator cuff tear. The MRI also revealed moderate subacromial subdeltoid bursitis.

A second MRI of claimant's right shoulder performed on August 7, 2012, revealed supraspinatus tendinosis with limited partial thickness articular surface bearing, subacromial/subdeltoid bursitis. The study also showed the muscles of the rotator cuff had no atrophy and no full thickness or retracted rotator cuff tear. There was no significant change since the report of May 15, 2012.

The claimant underwent right shoulder surgery on October 5, 2012, consisting of open sub-pec biceps tenodesis, glenohumeral debridement of the anterior and superior labrum as well as the biceps, subacromial decompression and ac joint resection.

Claimant was examined by the carrier's consultant, Dr. Watnik, on April 11, 2013. In his IME-4 (Independent Examiner's Report of Independent Medical Examination), Dr. Watnik reported the claimant's range of motion for the right shoulder as follows: forward flexion at 180 degrees (170-180 degrees normal), extension at 40 degrees (40 degrees normal), abduction at 180 degrees (170-180 degrees normal), adduction at 45 degrees (45 degrees normal), internal rotation at 90 degrees (80-90 degrees normal), and external rotation at 90 degrees (80-90 degrees normal) with pain. Dr. Watnik opined that the claimant had not reached maximum medical improvement.

Claimant underwent a third MRI of his right shoulder on May 15, 2013, which revealed moderate supraspinatus tendinosis without evidence of rotator cuff tear, and mild subacromial/subdeltoid bursitis.

Claimant was examined on August 14, 2013, by Dr. Rosenberg on behalf of the employer to determine whether and when claimant could return to full duty work as a corrections officer, or in a restricted duty capacity. Dr. Rosenberg noted the following range of motion measurements for the claimant's right shoulder: flexion from 0 to 140 degrees, abduction from 0 to 110 degrees, external rotation from 0 to 75 degrees, and internal rotation from 0 to 75 degrees.

Claimant underwent right shoulder arthroscopy, acromioplasty subacromial decompression on August 30, 2013.

In a September 12, 2013, narrative report, Dr. Shubin-Stein reported the claimant was two weeks status post right synovectomy and mild acromioplasty revision, and that claimant's active forward flexion was 0 to 150 degrees.

A September 13, 2013, physical therapy report noted that the claimant's range of motion measurements were abduction to 75 degrees, internal rotation to 65 degrees, and external rotation to 75 degrees.

In a narrative report dated January 7, 2014, Dr. Shubin-Stein stated that claimant's range of motion was full and symmetrical, although he continued to hike his shoulder with forward flexion so Dr. Shubin-Stein prescribed physical therapy twice per week for six weeks, and agreed the claimant was able to return to work with a 10 pound lifting restriction for the first two months.

A PT-4 (Physical Therapist's Report) dated January 27, 2014, noted right shoulder flexion was to 160 degrees, right external rotation was 85 degrees, and left external rotation was 90 degrees.

By a Notice of Proposed Decision dated February 10, 2014, the Board established this claim for injuries to the neck, right arm and shoulder, determined the average weekly wage and made awards. The Notice of Proposed Decision became final on March 17, 2014.

In a narrative report dated April 14, 2015, Dr. Hecht indicated that claimant was seeking a second opinion concerning treatment. Dr. Hecht noted the claimant had tenderness in his right shoulder, atrophy of the deltoid muscle, weakness with abduction and restricted range of motion. Dr. Hecht diagnosed derangement of the right shoulder and prescribed physical therapy.

In an April 28, 2015, narrative, Dr. Hecht noted the claimant had tenderness in his right shoulder, healed arthroscopic portals, healed scar in the anterior axillary fold, atrophy of the deltoid muscle, weakness with abduction and restricted range of motion.

In a C-4.3 (Doctor's Report of MMI/Permanent Impairment) filed on May 26, 2015, for an examination conducted on May 13, 2015, Dr. Hecht reported atrophy of the deltoid muscle, weakness with abduction, adduction to 100 degrees, anterior flexion to 100 degrees, internal rotation to 40 degrees, and external rotation to 30 degrees. Dr. Hecht reported that the claimant had returned to work and could perform his job without restrictions. Dr. Hecht concluded that the claimant had a 50% SLU for the right arm.

In IME-4 dated July 24, 2015, based on an examination conducted on July 16, 2015, the carrier's medical consultant, Dr. Skolnick, noted that he had reviewed the claimant's medical reports from Dr. Hecht dated April 14, 2015, and April 28, 2015, an x-ray report dated April 14, 2015, and the C-4.3 dated May 13, 2015. Dr. Skolnick also reviewed requests for variances from Dr. Shubin-Stein from September 26, 2012, until May 5, 2014, Dr. Shubin-Stein's medical reports from October 16, 2012, until January 17, 2014, Dr. Shubin-Stein's operative reports dated October 5, 2012, and August 30, 2013, as well as multiple diagnostic, treatment and physical therapy reports. Dr. Skolnick noted the claimant reported pain in the 3-4 range out of 10 in the neck, right shoulder, right elbow and right wrist. Dr. Skolnick also noted that he measured the claimant's range of motion using a goniometer. For the right shoulder, Dr. Skolnick found abduction to 170 degrees (180 degrees normal), 30 degrees adduction (30 degrees normal), forward flexion of 170 degrees (180 degrees normal), extension to 40 degrees (40 degrees normal), and normal internal and external rotation. Dr. Skolnick opined the claimant had a 15% SLU for the right arm because of the decreased range of motion and decompression.

By a decision filed October 13, 2015, the WCLJ directed the parties to conduct depositions of the claimant's treating physician and the carrier's independent medical consultant.

On October 7, 2015, Dr. Skolnick testified he examined the claimant on July 16, 2015, issued a report thereafter, and the report contained accurate information about the claimant's examination. Dr. Skolnick confirmed his opinion that the claimant had reached maximum medical improvement and had a 15% SLU pursuant to the 2012 Permanency Guidelines.

On cross-examination, Dr. Skolnick testified he did not have the 2012 Permanency Guidelines for the testimony so he could not provide the breakdown of how he determined the claimant had a 15% SLU. Dr. Skolnick testified that "[h]e had a very modest loss of motion. The surgical procedures he had involved debridement and decompression and a biceps tenodesis. The sum total of those various elements of the procedure, in my opinion, add up to 15 percent" (deposition, Dr. Skolnick, 10/7/15, p. 5). On redirect examination, Dr. Skolnick stated that he had the Permanency Guidelines in front of him when he came to his opinion regarding claimant's schedule loss of use.

Dr. Hecht was deposed on November 9, 2015, and testified that he first examined the claimant on April 14, 2015, and diagnosed right shoulder status post arthroscopic procedures with limited range of motion. He examined the claimant for the final time on May 13, 2015, and completed the C-4.3 on that day. He found that claimant had reached maximum medical improvement and opined the claimant had a 50% SLU to the right arm based on the 2012 Permanency Guidelines. He referred to page 23 of the Guidelines, finding a 30% SLU for the claimant's anterior flexion of 90 degrees, and according to page 24, Dr. Hecht found a 20% SLU for the claimant's marked defects of external and internal rotations.

On cross-examination, Dr. Hecht testified he did not report the claimant's range of motion measurements in the two reports he made prior to the C-4.3 report. He did not use a goniometer to measure the claimant's range of motion, and he measured for active range of motion. On redirect examination, Dr. Hecht testified the claimant had atrophy and weakness.

The parties submitted summations, and by a reserved decision dated January 11, 2016, the WCLJ found Dr. Hecht's opinion and testimony were credible because Dr. Hecht was able to explain the basis for his opinion using the Board's 2012 Permanency Guidelines. The WCLJ found that Dr. Skolnick was not credible because Dr. Skolnick could not articulate how he determined the claimant had a 15% SLU. The WCLJ, therefore, found that claimant had a 50% SLU based on Dr. Hecht's detailed and credible testimony.

The self-insured employer filed an application for administrative review, arguing that Dr. Hecht inflated the range of motion measurements, and did not have a complete documentary record of the claimant's injury history and treatment. The self-insured employer urged the Board Panel to credit the opinion and testimony of Dr. Skolnick, and find the claimant had a 15% SLU.

The claimant filed a rebuttal, urging the Board to affirm the WCLJ's findings because Dr. Skolnick ignored special considerations number eight of the Permanency Guidelines concerning the arm, which provides for a 10-15% SLU for a rotator cuff tear. Further, the claimant argued Dr. Skolnick was not credible because he stated in his report that he used a goniometer to measure the claimant's range of motion, but the claimant maintained Dr. Skolnick did not use any device to measure the claimant's range of motion.

By a decision filed February 3, 2016, the WCLJ implemented and awarded claimant a 50% SLU of the arm, directed employer reimbursement in the amount of $58,920.20, and awarded claimant's attorney a fee of $6,475.00.

LEGAL ANALYSIS

"It is well settled that the Board may accept or reject all or part of any medical evidence presented, as well as determine the weight to be given thereto" (Matter of Nappi v Bell Atl. Corp. /NYNEX, 284 AD2d 877 [2001] [citations omitted]).

"While the guidelines provide useful criteria to be used in assessing a claimant's degree of disability, the ultimate determination rests with the Board and must be upheld if it is supported by substantial evidence (see Matter of VanDermark v Frontier Ins. Co., 60 AD3d 1171 [2009]; Matter of Hare v Champion Intl., 50 AD3d 1254 [2008], lv denied 11 NY3d 863 [2008])" (Matter of Soluri v Superformula Prods., Inc., 96 AD3d 1292 [2012]; see also Matter of Haight v Con Edison, 78 AD3d 1468 [2010]).

Here, Dr. Skolnick's report and testimony concerning the claimant's schedule loss of use is more credible. Dr. Skolnick testified that he used a goniometer to measure the claimant's range of motion in the right shoulder, and referred to the 2012 Permanency Guidelines when determining the claimant had a 15% SLU. While claimant contends that Dr. Skolnick did not use a goniometer, Dr. Skolnick's measurements were consistent with the measurement of claimant's treating medical providers, other than Dr. Hecht, during the course of the claimant's treatment. A 15% SLU for the claimant's mild defects in range of motion is consistent with the 2012 Permanency Guidelines.

While Dr. Hecht testified he referred to the 2012 Permanency Guidelines to determine the claimant had a 50% SLU, his report and testimony were not credible. Dr. Hecht saw the claimant twice before providing his permanency opinion, and his range of motion findings were vastly different from the findings of claimant's treating providers on August 14, 2013, September 12, 2013, September 13, 2013, January 7, 2014, January 27, 2014, as well as Dr. Skolnick's schedule loss of use measurements on July 24, 2015. On January 7, 2014, Dr. Shubin-Stein, who treated the claimant for years, reported the claimant had full range of motion, and determined that the claimant could return to work with a ten pound lifting restriction for the first two months. Further, no other medical provider opined that the claimant had atrophy of the deltoid muscle.

Therefore, the Full Board finds that the preponderance of the credible evidence in the record supports a finding that the claimant has a schedule loss of use of 15% for the right arm.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed January 11, 2016, is MODIFIED to find that the claimant has a 15% SLU of the right arm. The WCLJ decision filed February 3, 2016, is MODIFIED to rescind the directed awards and to return the matter to the hearing calendar for the recalculation of the schedule loss of use award in accordance with the 15% SLU finding. The case is continued.