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Case # G0970166
Date of Accident: 06/03/2013
District Office: Albany
Employer: Mid Hudson Psychiatric Center
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 66447103-153
Date of Filing of Decision: 12/20/2017
Claimant's Attorney: Ouimette Goldstein & Andrews LLP
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on November 21, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed March 27, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant should be classified with a permanent partial disability or awarded schedule losses of use based on injuries to his right shoulder and left knee.

The Workers' Compensation Law Judge (WCLJ) found that the claimant had reached maximum medical improvement, had a permanent partial physical impairment, and that the claim was not amenable to a schedule loss of use award. The WCLJ continued the case for development of the record on claimant's loss of wage earning capacity.

The Board Panel majority affirmed the WCLJ decision in its entirety.

The dissenting Board Panel member would have awarded claimant a 57.5% schedule loss of use of the right shoulder and a 7.5% schedule loss of use of the left knee.

The claimant filed an application for Mandatory Full Board Review on April 6, 2017, requesting that claimant be awarded schedule losses of use as found by the dissent.

The carrier filed a rebuttal on May 4, 2017, contending that the Board Panel majority correctly found that this case is not amenable to a schedule loss of use finding.

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

FACTS

This case is established for injuries to the back, right shoulder, and left knee as the result of a work-related accident on June 3, 2013 (see EC-23 [4-2-14]). The claimant's associated case, WCB case # G0915202, has been established for the back and left shoulder as a result of a work-related accident on July 15, 2014 (see EC-23 [7-24-16]).

In a medical report dated May 3, 2016, the carrier's consultant, Dr. Appel, indicated that the claimant presented with complaints of back pain and that the MRI revealed evidence of a herniated disc in the back. During the physical examination, Dr. Appel noted tenderness of the claimant's mid-back. Based on this evaluation, Dr. Appel opined that the claimant had a permanent impairment to the back of a Class 2, Severity Ranking A. He further opined that the claimant had a 40% schedule loss of use of the right shoulder.

On September 6, 2016, Dr. Appel testified in accordance with his medical report. He stated that he last saw the claimant on May 3, 2016, at which time he examined the right shoulder, left shoulder, low back, and left knee (see Deposition, Dr. Appel, 9/6/16, p. 4). The claimant had a soft tissue injury to the right shoulder, soft tissue injury to the back without radiculopathy, traumatic injury to the left knee with chondromalacia, and was status post arthroscopic injury (see id. at p. 5). The claimant had a permanent impairment to the lumbar spine and, utilizing the Medical Treatment Guidelines Table 11.1, found that the claimant had a Severity Ranking of 2A (see id.). The doctor further found that the claimant had a 40% schedule loss of use of the right arm (see id. at p. 6). On cross-examination, Dr. Appel further testified that he would find a 7.5 % schedule loss of use of the left leg, if he had to give a percentage, and a 40% schedule loss of use of the left shoulder, even though his medical report was silent on these findings (see id. at pp. 11-12).

In a medical report dated April 19, 2016, the carrier's consultant, Dr. Miller, reported that the claimant had a Class 2, Severity Ranking A, impairment (see IME-4 [4-19-16] [WCB #G0915202]). Dr. Miller testified in accordance with his report on August 31, 2016 (see Deposition, Dr. Miller, 8/31/16 [WCB #G0915202]). He stated that he examined the claimant's left shoulder and back and that he considered not only the claimant's back condition, but also his left shoulder condition in arriving at his permanency finding of a mild disability (see id. at pp. 4-5). If not for the left shoulder injury, Dr. Miller stated, he still would have found the claimant to have a mild disability (see id. at p. 5). The doctor did not make a schedule loss of use finding for the claimant's arm (see id.).

In a medical report dated February 29, 2016, the claimant's physician, Dr. Weiner, found that the claimant demonstrated a 57.5% schedule loss of use of his left arm (see EC-4.3 [2-29-16] [WCB #G0915202]). On September 12, 2016, Dr. Weiner testified in accordance with this report. He stated that he had examined the claimant multiple times and had most recently diagnosed the claimant with left shoulder rotator cuff syndrome, left knee contusion, right thumb sprain, and lumbar sprain and strain (see Deposition, Dr. Weiner, 9/12/16, p. 6 [WCB #G0915202]). He stated that during his February 29, 2016, examination, he only examined the claimant's left shoulder, not his back, and found that the claimant had a 57.5% loss of use of the left arm (see id. at pp. 8-9). He noted that he could see the claimant again to determine permanency for his back injury, but that he had not yet given a permanency opinion regarding the claimant's back (see id. at pp. 9-10).

However, review of the electronic board file shows that Dr. Weiner reexamined the claimant on June 10, 2016, for a reevaluation of injuries to his right shoulder, left knee, and lumbar spine. As relevant here, Dr. Weiner found "for the lumbar spine, [that the claimant] has a history of a documented injury to the lumbar spine, with persistent symptoms, and no objective clinical findings consistent with spinal pathology. As such, he demonstrates a class II, severity ranking A permanency for the lumbar spine" (see EC-4.3 [6-10-16], p. 2).

In a decision filed October 21, 2016, the WCLJ found that the claimant had reached maximum medical improvement, the case was not amenable to a schedule, and the claimant had a permanent impairment to the back of a Class 2, Severity Ranking A, per the credible evidence of Drs. Miller and Appel. The case was continued for the testimony of the claimant on the issue of loss of wage earning capacity.

The claimant sought administrative review, arguing that there was no evidence that he had a permanent impairment to the back. The claimant asserted that the WCLJ should have instead found that he has a 57.5% loss of use of the right shoulder and a 7.5% loss of use of the left knee, per the reports of Drs. Appel and Weiner.

In rebuttal, the carrier maintained that the WCLJ decision was correct as a matter of fact and law and should therefore be affirmed.

LEGAL ANALYSIS

A claimant may not receive both a schedule award(s) and a permanency classification for injuries arising out of the same accident (Matter of Metropolitan Hospital, 2016 NY Wrk Comp G0761641). In Metropolitan Hospital, the Full Board wrote:

The 2012 Permanency Guidelines provide for two types of permanency evaluations: (1) schedule awards for the impairment of extremities, loss of vision, loss of hearing or facial disfigurement, and (2) non-schedule classification as a permanent partial or total disability. Awards are directed for schedule injuries based on numerous factors provided in the Guidelines. Section 1.5 also states that "[n]o residual impairments must remain in the systemic area (i.e. head, neck, back, etc.) before the claim is considered suitable for schedule evaluation of an extremity or extremities involved in the same accident." An exhaustive list of circumstances is given for conditions that would otherwise be the subject of a schedule to be instead classified. Nothing in the Guidelines expressly permits, or even suggests, that a claimant is entitled to both types of determinations for injuries suffered in the same accident. The Guidelines provide the comprehensive manner in which to handle the two types of injuries. WCL 15(3) also does not permit the award of both a schedule and classification for injuries suffered in the same accident. A claimant who had returned to work at full wages loses nothing as the cap weeks set forth therein do not run while the claimant is not collecting indemnity benefits. A claimant not experiencing any loss in wages earned despite existing physical impairment may not be collecting any benefits, but retains the right to collect benefits for the same overall amount of time at some point in the future, should he or she experience wage loss caused by the established injuries. The virtual banking of cap weeks is the benefit received under such circumstances and is the benefit permitted by WCL 15(3) and the Guidelines. It is a real benefit and it vests with the claimant upon classification.

Here, both Dr. Miller and Dr. Appel credibly found that claimant had a permanent impairment to the back with a Class 2 Severity Ranking, consistent with the Board's Impairment Guidelines. There is no credible evidence that claimant has no residual impairment resulting from his back injury.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant has permanent partial physical impairment, and that his claims are not amenable to schedule loss of use awards.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed October 21, 2016, is AFFIRMED. No further action is planned by the Board at this time.