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Case # G0351015
Date of Accident: 06/22/2010
District Office: Hauppauge
Employer: Central Islip U.F.S.D.
Carrier: Central Islip UFSD
Carrier ID No.: W809792
Carrier Case No.: 0000W06780
Date of Filing of Decision: 06/16/2017
Claimant's Attorney: Fusco, Brandenstein & Rada PC
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

* This decision also pertains to the following case(s): G0816138.

The Full Board, at its meeting on May 16, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed August 4, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant has a 55% schedule loss of use (SLU) of the left leg.

The Workers' Compensation Law Judge (WCLJ) concluded that the claimant has a 55% SLU of the left leg apportioned between two compensable injuries.

The Board Panel majority affirmed the finding of the WCLJ.

The dissenting Board Panel member would find that claimant has a 25% SLU of the left leg.

The self-insured employer (SIE) filed an application for Mandatory Full Board Review on August 22, 2016, arguing that claimant should be awarded at most a 22.5% SLU of the left leg.

The claimant filed a rebuttal on September 19, 2016, arguing that the decisions of the WCLJ and the Board Panel are supported by the record and should be affirmed in their entirety.

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

FACTS

WCB Case Number G0351015 is established for a left knee injury that occurred on June 22, 2010. The case was subsequently amended to include a consequential right hip injury. WCB Case Number G0816138 is established for an aggravation of a pre-existing condition to both knees that occurred on January 13, 2014.

Claimant underwent arthroscopic left knee surgery on January 11, 2011, performed by her treating physician, Dr. Cherney, which included a partial medial meniscectomy.

Dr. Cherney found that the claimant has a 55% SLU of the left knee, with 35% attributable to the June 22, 2010, injury, and 20% attributable to the January 13, 2014, injury, a 30% SLU of the right knee, and a 7.5% SLU of the right hip.

Dr. Waller, the SIE's consultant, opined that the claimant has a 17.5% SLU of the left knee, 10% attributable to the June 22, 2010, injury, and 7.5% attributable to the January 13, 2014, injury, as well as a 7.5% SLU to the right knee, and a 7.5% SLU of the right hip.

Dr. Cherney testified that he first saw the claimant on October 18, 2010, when he took a history from the claimant that he was putting away high jumping mats at the school where he worked when he injured his left knee. Dr. Cherney started treating the claimant for his January 13, 2014, accident on January 17, 2014, and took a history that on the date of accident, the claimant was breaking up a fight when his left knee buckled. On January 11, 2011, the claimant had an arthroscopy, chondroplasty and synovectomy of the left knee. Dr. Cherney examined the claimant for an SLU of the left knee on July 29, 2015. The claimant had left knee limited range of motion of 5-105 degrees, moderate patella femoral crepitus, and tenderness. Dr. Cherney found that the claimant had a 55% SLU of the left leg, which he apportioned 35% to the 2010 accident and 20% to the 2014 accident. He determined that claimant had a 55% SLU of the left leg by assessing 25% for range of motion deficits (5% for loss of full extension and 20% for loss of flexion), 10% for chondromalacia and 20% for the meniscal tear. Dr. Cherney also indicated that he reviewed the prior diagnostic tests, including x-rays, to determine apportionment.

Dr. Waller testified that he examined the claimant on July 28, 2015. Dr. Waller took a similar history to that of Dr. Cherney. Dr. Waller indicated that the claimant had a right hip sprain/strain and was post left knee arthroscopic surgery. Dr. Waller indicated that he found that the claimant had a 7.5% SLU of the right hip from the bursitis. Dr. Waller testified that claimant had a 7.5% SLU of the left knee based on the 2014 accident and an overall 17.5% SLU of the left knee.

In a reserved decision filed on December 2, 2015, the WCLJ credited the opinion of Dr. Cherney, as he saw the claimant on numerous occasions and was quite familiar with his care. The WCLJ concluded that Dr. Cherney's opinion that the claimant has a 55% SLU of the left leg "seems to be in accord" with the Guidelines, as his range of motion of 5 to 105 degrees constituted a moderate defect. The WCLJ apportioned 35% of the claimant's left knee schedule to the June 22, 2010, injury (WCB # G0351015) and 20% to the January 13, 2014, injury (WCB # G0816138).

The SIE requested administrative review of the WCLJ decision.

LEGAL ANALYSIS

Chapter 3.2 (Knee) of the Board's 2012 Impairment provides that chondromalacia patella, mild to marked degree, equals 7 1/2%-10% loss of use of the leg, depending on the defects of motion and atrophy of muscles found (Special Consideration Number 4, p. 28 ). A medial or lateral meniscus excision, for one or both, equals 7 1/2-10% loss of use of the leg; with joint defects and muscle atrophy average award is 15-20%; partial excision of the meniscus without defects equals 7 1/2% loss of use of the leg; excision of the meniscus should be documented by operative report or pathological report (Special Consideration Number 9, p. 28). With respect to loss of range of motion of the knee, the Impairment Guidelines provide that a mild defect of flexion and extension equals 10-15% loss of use of the leg; moderate defects of flexion and extension equals 40-45%; marked defects of flexion and extension equals 66 2/3% (Figure 3.2, p. 27).

Dr. Cherney found that the claimant's range of motion in his left leg was 5 to 105 degrees. Dr. Cherney confirmed this particular finding when he testified on October 22, 2015, stating that the claimant's "left knee has limited range of motion, 5 to 105 degrees." Dr. Cherney also credibly testified that the claimant had "a medial meniscus tear, chondromalacia of the patella, and chondromalacia of the medial femoral condyle and femoral sulcus and synovitis" at the time of his January 11, 2011, partial medial meniscectomy. The Full Board finds that these objective findings by Dr. Cherney are credible.

However, the Full Board finds that Dr. Cherney's conclusion that the claimant has a 55% SLU of the left leg is not consistent with the Guidelines. The claimant's range of motion of 5 to 105 degrees alone requires a finding of a 25% SLU. This is entirely consistent with the findings reached by Dr. Cherney. However, the Full Board finds Dr. Cherney's chondromalacia findings support only an additional 7.5% SLU pursuant to special consideration number four, not the 10% found by Dr. Cherney, as the doctor failed to document any muscle atrophy. The Full Board further finds that claimant's 2011 partial medial meniscectomy supports only an additional 7.5% SLU pursuant to special consideration number nine based on claimant's partial medial meniscectomy, not the 20% found by Dr. Cherney, as the doctor failed to document muscle atrophy. Special Consideration Number 9 [knee] specifically provides that a "[p]artial excision of the meniscus without defects equals 7.5% loss of use of leg." Therefore, based on the objective findings of Dr. Cherney, the claimant's condition is amenable to a 40% SLU of the left leg.

The Board Panel majority's decision to apportion liability for the claimant's SLU of the left leg between the June 22, 2010, work-related accident, and the January 13, 2014, work-related accident, is not in dispute and is supported by Dr. Cherney's credible medical opinion.

Therefore, the Full Board finds that the preponderance of the evidence supports a finding that the claimant has a 40% SLU of the left leg, which is to be apportioned at the same ratio found by the WCLJ and Board Panel majority between the June 22, 2010, work-related accident (WCB # G0351015; 63.64% liable for SLU) and the January 13, 2014, work-related accident (WCB # G0816138; 36.36% liable for SLU).

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed on December 2, 2015, is MODIFIED to find that claimant has a 40% SLU of the left leg apportioned between the two claims as outlined above. No further action is planned by the Board at this time.