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Workers' Compensation Board

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Case # G0290171
Date of Accident: 03/28/2010
District Office: NYC
Employer: New York Power Authority
Carrier: New York State Power Authority
Carrier ID No.: W847750
Carrier Case No.: 0001W63152
Date of Filing of Decision: 06/20/2017
Claimant's Attorney: Pyrros and Serres, LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

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 June 3, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether claimant is totally industrially disabled.

The Workers' Compensation Law Judge (WCLJ) found that claimant was permanently partially disabled and had an 80% loss of wage earning capacity (LWEC).

The Board Panel majority modified the WCLJ decision to find that claimant is totally industrially disabled.

The dissenting Board Panel member would affirm the WCLJ.

The self-insured employer (SIE) filed an application for Mandatory Full Board Review on June 28, 2016, requesting that the Full Board find that claimant has a 50% LWEC. In the alternative, the SIE asks that the WCLJ decision be affirmed.

The claimant filed a rebuttal on July 26, 2016, asking that the decision of the Board Panel majority be affirmed.

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

FACTS

Claimant was injured on March 28, 2010, while working for the New York Power Authority. This claim is established for the back and consequential injuries to the right hand and elbow. Claimant's average weekly wage was set at $2,306.24.

In a November 12, 2010, report, Dr. Roonprapunt, a neurosurgeon, noted that an MRI of claimant's lumbar spine taken April 7, 2010, revealed an intervertebral disc herniation at L4-5. Dr. Roonprapunt discussed with claimant the option of performing a lumbar discectomy and fusion, but claimant opted not to undergo surgery.

Claimant submitted a VDF-1 (Loss of Wage Earning Capacity Vocational Data Form) on September 28, 2012, indicating that prior to working for the power authority, he had served in the Navy where he had been trained as a boiler technician. He indicated that he spoke, read and wrote English well.

Claimant underwent a functional capacity examination (FCE) performed by a physical therapist on February 18, 2015. The FCE report indicated that claimant could "tolerate static sitting, sitting with forward bending or rotation, and walking on an occasional basis." However, he had to "frequently change positions, especially from sitting to standing," and his ability to tolerate walking was significantly below average. Claimant did have the ability to "generate enough force to push/pull light-medium loads (73 pounds for push and 93 pounds for pull)." The FCE report stated that claimant is suffering from severe low back pain with radiculopathy and bilateral knee pain. He moves with an altered gait pattern. The FCE report concluded that claimant can no longer perform the demands of the job at which he was working when he was injured, and that,

[Claimant] is currently unable to function at any job even at the sedentary physical demand level due to the high level of dysfunction caused by the above described symptoms in multiple muscle groups and joints. He is not able to tolerate an 8-hour work day due to positional intolerances in sitting and standing (must change positions very frequently), increased fatigue, deterioration of movements as tasks progress, and poor musculoskeletal endurance.

On March 24, 2015, claimant was examined by the SIE's consultant, Dr. Miller. In his IME-4 (Independent Examiner's Report of Independent Medical Examiner), Dr. Miller noted that claimant complained of constant extreme low back pain radiating down his left leg with paresthesia, and pain in his right elbow and hand aggravated by cane usage. Dr. Miller diagnosed lumbosacral strain/left lumbar radiculopathy, right elbow sprain and right hand sprain. According to Dr. Miller, claimant had reached maximum medical improvement and had a permanent impairment of his lumbar spine of class 3, severity ranking B. Taking into account all of claimant's causally related injuries, Dr. Miller found that he had the ability to perform "light work." Claimant could lift, carry, push and pull 10 pounds frequently, and could lift, carry, push and pull 20 pounds occasionally. He can sit, stand, walk, climb and kneel occasionally, but should never bend, stoop or squat. He can occasionally use his hands for simple grasping and fine manipulation, reaching overhead and below shoulder level, and driving and operating machinery. He should avoid temperature extremes and high humidity.

Based on an examination of the claimant performed April 7, 2015, claimant's treating physician, Dr. Touliopoulos, issued a C-4.3 (Doctor's Report of MMI/Permanent Impairment) dated April 22, 2015, in which he found that claimant had reached maximum medical improvement and had a permanent impairment of his lumbar spine of severity ranking J. Dr. Touliopoulos indicated that claimant would not benefit from vocational rehabilitation, but offered no explanation for that conclusion. Dr. Touliopoulos did not offer an opinion concerning claimant's functional and exertional abilities on the C-4.3 form.

In a narrative report dated April 14, 2015, attached to the C-4.3, Dr. Touliopoulos stated that the claimant reported significant back pain with spasms radiating down both legs, the left worse than the right. Claimant has weakness in his left leg that makes ambulating difficult and he uses a cane for assistance. Even with the use of a cane he has "difficulty standing more than 10-15 minutes or walking even one block." Claimant has intermittent tingling and discomfort in his feet and toes, worse on the left than on the right. He has significantly restricted range of motion of his lumber spine. Sensation in his left foot and leg are diminished. He uses oxycodone as needed for pain. His wife helps him with activities such as cooking, cleaning, shopping and personal hygiene. Dr. Touliopoulos diagnosed claimant with lumbar spine disc herniation with radiculopathy and indicated that claimant was deferring surgical intervention. The doctor stated that claimant has a marked permanent partial disability as a result of his lower back injury.

Dr. Miller was deposed on June 12, 2015, and testified that claimant's "exertional ability was that of light work" (p. 8) and he could return to work full time (p. 11). When asked if he knew whether claimant had any difficulties with the activities of daily living, Dr. Miller responded, "I would expect he would" (p. 13).

Dr. Touliopoulos was deposed on June 16, 2015, and testified that claimant would be capable of performing less than sedentary work. Claimant requires "help with simple activities such as dressing and bathing" and "is quite disabled in even simple daily activities" (p. 15). Claimant should not operate machinery or climb ladders, and kneeling, bending, stooping and squatting "should be limited" (p. 16).

At a hearing on October 5, 2015, claimant, who is age 54, testified that he graduated from high school and received a boiler technician certification. At the time of his injury, he worked at a power plant. His job required him to walk the plant, climb ladders, take tank readings, and open and close large valves. His job required heavy lifting. He had no experience working with computers apart from what he was required to learn for his job at the power plant. He began working for the Power Authority at age 21 and has never worked for another employer. He cannot sit or stand for long periods, cannot "walk any kind of distance" and cannot drive for more than 20-25 minutes. His wife helps him to shower and to get dressed.

By a decision filed October 21, 2015, the WCLJ found that claimant had a permanent impairment of his lumbar spine of J severity and was capable of performing work involving less than sedentary physical demands. Taking into account claimant's physical impairment and vocational factors, the WCLJ found that claimant had an 80% LWEC entitling him to permanent partial disability benefits not to exceed 425 weeks, directed ongoing benefits at the rate of $600.00 per week and awarded a fee of $6,000.00 to claimant's attorneys.

Both the claimant and the SIE requested administrative review of the WCLJ's October 21, 2015, decision. The SIE argued that claimant should be found to have a permanent impairment of the lumbar spine of a B severity ranking and an LWEC of 25%. In the alternative, the SIE argues that claimant's LWEC should be found to be not greater than 50%. Claimant argued that he should be found to have a 100% LWEC.

LEGAL ANALYSIS

Degree of Medical Impairment

The Board's 2012 Impairment Guidelines (2012 Guidelines) set forth objective standards for evaluating and rating medical impairment. The extent of impairment will be measured by considering medical evidence of impairment and medical evidence of functional loss.

The 2012 Guidelines provide medical impairment severity rankings by body part/system that use letter grades (A-Z). The Guidelines contain specific criteria for the evaluation of conditions involving the spine and pelvis, respiratory system, cardiovascular system, skin, brain and chronic pain (Chapters 11-16) and they set forth principles for the evaluation of impairment of other body parts and systems (Chapter 17). Severity rankings are from "A" (the least severe) to "Z" (the most severe) for the classes within a given chapter.

The medical assessment of the residual functional abilities and losses is a key component in a determination of loss of wage earning capacity. The Guidelines set forth standards for treating medical providers as well as carrier consultants to measure and report the abilities and losses of injured workers across a range of work-related functions such as lifting, carrying, pushing, walking, standing, etc. The measurement of these abilities and losses is reported on Board Form C-4.3 (Doctor's Report of MMI/Permanent Impairment). Form C-4.3 also provides for a description of the injured worker's exertional ability, and requires the physician to rate the claimant's ability according to a standard classification system of "sedentary" to "very heavy" work. The measurement of exertional ability is also discussed in Chapter 9 of the Guidelines.

Here, claimant reports experiencing frequent and severe pain in his lumbar spine with radicular pain radiating down both legs, the left worse than the right. An MRI of claimant's lumbar spine revealed an intervertebral disc herniation at L4-5. Dr. Roonprapunt recommended that claimant undergo a lumbar discectomy and fusion, but claimant opted not to undergo surgery. Claimant has weakness in his left leg, tingling and discomfort in his feet and toes and ambulates with the use of a cane. Sensation in his left foot and leg are diminished. He has significantly restricted range of motion of his lumber spine.

Claimant's treating physician, Dr. Touliopoulos, testified that claimant would be capable of performing less than sedentary work and that he requires "help with simple activities such as dressing and bathing" and "is quite disabled in even simple daily activities." The SIE's consultant, Dr. Miller, noted numerous specific restrictions in his report and testified that he expected that claimant would have difficulties with the activities of daily living.

The preponderance of the evidence in the record supports a finding that claimant has a permanent impairment of his lumbar spine of J severity and was capable of performing work involving less than sedentary physical demands.

Total Industrial Disability

To prove a claim for total industrial disability, a permanently partially disabled claimant must demonstrate how the disability combines with other factors to "render the claimant incapable of salaried employment" (Matter of Guan v CPC Home Attendant Program, Inc., 50 AD3d 1218 [2008]). These other factors may include claimant's limited educational background, functional limitations, age, language proficiency, training, and work experience (Matter of Barsuk v Joseph Barsuk, Inc., 24 AD3d 1118 [2005]; Matter of Kowalchyk v Lupe Constr. Co., 151 AD2d 927 [1989]; Guan, 50 AD3d 1218 [2008]). In evaluating this issue, the Board may consider one or more of the following types of evidence: claimant's testimony regarding the factors enumerated above, and any efforts to secure employment; medical evidence showing that claimant is functionally incapable of working; and/or a report from claimant's vocational rehabilitation expert demonstrating claimant's unsuitability to general employment. Evidence that a claimant has made attempts to secure employment without success is not a prerequisite for a finding of total industrial disability (Matter of Interstate Brands Corp., 2013 NY Wrk Comp 20205906). "Whether a total industrial disability exists presents a question of fact for the Board to resolve and its determination will be upheld if supported by substantial evidence" (Matter of Kucuk v Hickey Freeman Co., Inc., 78 AD3d 1259 [2010] [internal citations omitted]).

Here, claimant has a significant permanent physical impairment of his lumbar spine and numerous restrictions that limit his ability to work. Claimant was 54 years old at the time of his classification, graduated from high school and can read, write and speak English well. However, he can no longer perform heavy physical labor, and could no longer perform the duties of his job at the Power Authority, where he had worked for over 27 years. The FCE report states that claimant was unable to function at any job, even a sedentary one. Dr. Touliopoulos indicated in his C-4.3 that claimant would not benefit from vocational rehabilitation.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant has met his burden of proving he is totally industrially disabled.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed October 21, 2015, is MODIFIED to find that claimant is totally industrially disabled. All awards are payable at the permanent total disability rate of $600.00 per week and are not subject to a cap on the number of benefit weeks claimant may receive. No further action is planned by the Board at this time.