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Workers' Compensation Board

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Case # G0343796
Date of Accident: 11/07/2010
District Office: NYC
Employer: Mount Sinai Medical Center
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: FOJP-015694
Date of Filing of Decision: 07/20/2017
Claimant's Attorney: Joel Fredericson
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 December 28, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant should be awarded a schedule loss of use (SLU) instead of being classified with a (PPD).

The Workers' Compensation Law Judge (WCLJ) found that the claimant should be classified with a PPD from the back.

The Board Panel majority affirmed the WCLJ's findings, but modified the decision to set claimant's loss of wage earning capacity (LWEC) at 15%.

The dissenting Board Panel member would award claimant a 20% SLU of the right leg and a 40% SLU of the left leg, and would reverse the WCLJ's finding that the claimant has a PPD.

The claimant filed an application for Mandatory Full Board Review on January 27, 2017, arguing that the medical evidence supports awarding her a 20% SLU of the right leg and a 40% SLU of the left leg.

The carrier filed a rebuttal on February 20, 2017, requesting that the decision of the Board Panel majority be affirmed.

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

FACTS

This case was previously established for work-related injuries to the neck, back and both knees. The average weekly wage for the year before the November 7, 2010, accident was set at $1,851.65. Awards were made for various periods to December 3, 2012, when claimant appears to have returned to work without further lost time or reduced earnings.

In a C-4.3 based on a July 30, 2013, examination, claimant's treating physician, Dr. Hedrych, found that claimant's knee injuries were amenable to a 20% SLU of the right leg and 40% SLU of the left leg. He noted that claimant complained of persistent daily pain and stiffness in her cervical spine which radiated down her left arm, with associated tingling and weakness in the arm, pain and stiffness in her thoracic spine, and persistent daily pain and stiffness in her lumbar spine radiating into her left leg with numbness, cramping and weakness in the leg. The diagnoses noted in Dr. Hedrych's report include herniated discs with impinging spinal cord at C4/C5 and C5/C6, bulging discs at C2/3 and C3/C4, left C5/C6 radiculopathy with myelopathy, L5/S1 disc bulge, L4/5 and L4/L5 disc herniations, and L5/S1 radiculopathy.

Claimant was examined by the carrier's consultant, Dr. Goldmark, on December 26, 2013. In his IME-4 (Practitioner's Report of Independent Medical Examination), Dr. Goldmark noted that claimant complained of pain in her neck, middle back, lower back and both knees, which she rated as 8 out of 10 on the date of examination. Dr. Goldmark found claimant to have a permanent impairment of both her cervical and lumber spine of class two, severity ranking B. Dr. Goldmark concluded that "[b]ecause there is spinal permanency, schedule loss of use of the bilateral knees is not applicable."

The issue of permanency was joined during the April 8, 2015, hearing, and the case was continued for the depositions of Dr. Hedrych and Dr. Goldmark, as well as the claimant's testimony.

Dr. Hedrych was deposed on June 11, 2015, and testified that he had treated the claimant for work-related injuries since November 16, 2010. The claimant presented with a history of falling on a wet floor at work injuring her neck, back and both knees. The claimant's complaints consisted of pain in the neck, back and both knees. The doctor testified that the claimant had a left knee meniscectomy on March 20, 2012, and she ultimately returned to work on December 3, 2012. Dr. Hedrych examined the claimant for permanency on July 30, 2013, and found that she had limited range of motion at the neck and back, and both knees were limited to 115 degrees of flexion with positive McMurray's signs bilaterally. The doctor testified that the claimant has a 20% SLU of the right leg and a 40% SLU of the left leg.

On cross-examination, Dr. Hedrych admitted that the claimant had neck and back pain, as well as decreased range of motion during the last examination. The doctor admitted that the claimant had physical limitations from her neck and back, but they do not prevent her from being able to work. The doctor then admitted that the claimant has radicular symptoms into her arms and legs, but again she had no impairment because she was able to perform her job. The doctor confirmed that the claimant's back and neck had not resolved to their pre-accident state.

Dr. Goldmark was deposed on June 24, 2015, and testified that he examined the claimant for the carrier on December 26, 2013, and found that she had a cervical spine strain, thoracic spine strain, lumbar spine strain, right knee sprain, and status post left knee arthroscopy. At the time of the examination, the claimant had already returned to full duty work. The doctor testified that the claimant had class 2 neck and back injuries with a severity A ranking pursuant to table 11.1 of the permanent medical impairment guidelines. The claimant's neck and back have persistent subjective symptoms with no correlating objective clinical findings or imaging.

On cross-examination, the doctor testified that the claimant is fifty years old with normal range of motion for a woman her age. Dr. Goldmark disagreed with the treating doctor's conclusion that the neck and back have resolved, but he did admit that there are no objective findings consistent with the spinal pathology.

During the October 1, 2015, hearing the claimant testified that before the accident she worked as a patient care associate for the employer, and she was able to return to her job at the same basic earnings. The claimant confirmed that she has had no recent treatment for her neck and back. On cross-examination, the claimant testified she last treated with a doctor for her neck and back approximately a year and a half earlier. She admitted that she has occasional aches and pain in her neck and back, which she did not have before the accident. She has neck and back pain approximately every other month. With regard to vocational factors, the claimant has two years of college and reads, writes and speaks English. She knows how to use a computer.

In a decision filed October 8, 2005, the WCLJ classified the claimant with a PPD, but that claimant had no LWEC. The claimant thereafter applied for administrative review.

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]).

In this case, Dr. Goldmark credibly testified that the claimant had a permanent impairment of her cervical and lumbar spine of a class 2, severity A ranking. Both Dr. Goldmark and Dr. Hedrych found in their reports that the claimant had physical limitations as the result of her neck and back injuries, with persistent symptoms of pain. The record therefore supports the conclusion that the claimant's neck and back were causing a residual impairment warranting a PPD classification.

Therefore, the Full Board finds that the preponderance of the evidence supports a finding that the claimant was properly classified with a PPD, rather than awarded an SLU.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on October 8, 2015, is MODIFIED, to find that the claimant has a 15% loss of wage earning capacity, and an 85% wage earning capacity, which entitles her to 225 weeks of benefits, and notes that as the claimant returned to her pre-injury work with no reduction in earnings, she is not entitled to benefits at this time. In all other respects, the decision remains in effect. No further action is planned by the Board at this time.