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Case # G1214916
Date of Accident: 11/29/2014
District Office: Albany
Employer: Monroe-Woodbury CSD
Carrier: Monroe-Woodbury CSD
Carrier ID No.: W837942
Carrier Case No.: MW-033-14
Date of Filing of Decision: 12/20/2017
Claimant's Attorney: Dennis Kenny Attorney at Law
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 21, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether the record supports a $6,500.00 permanent facial disfigurement award.

The Workers' Compensation Law Judge (WCLJ) found that the claimant had a permanent facial disfigurement and awarded her $6,500.00.

The Board Panel majority reversed the WCLJ decision, without prejudice, and rescinded the award on the ground that a permanent facial disfigurement finding was inappropriate at this juncture because the claimant had not yet produced sufficient evidence of an impairment to her earnings due to her neck scar. The Board Panel majority permitted restoration to the trial calendar upon the submission of such evidence.

The dissenting Board Panel member would have affirmed the WCLJ.

The claimant filed an application for Mandatory Full Board Review on April 14, 2017, contending that the Board Panel majority improperly imposed a new burden of proof on the claimant by making her prove that her present wage-earning capacity is impaired. The claimant asserts that Workers' Compensation Law (WCL) 15(3)(t)(2) requires only that a claimant demonstrate that future wage-earning capacity may be impaired. The claimant therefore asks that the Full Board adopt the dissenting Board Panel member's opinion and reinstate the $6,500.00 facial disfigurement award.

The self-insured employer (SIE) filed a rebuttal on May 15, 2017, arguing that the majority properly found that the claimant was not entitled to a permanent facial disfigurement award at this time because she failed to produce any evidence of current or future loss of wage earnings.

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

FACTS

This claim is established for work-related injuries to the head and neck that claimant sustained on November 29, 2014. The claimant's average weekly wage was set at $1,362.71, based on concurrent employment.

By form C-4AMR (Ancillary Medical Report) dated November 2, 2015, Dr. Kothari, claimant's treating anesthesiologist/pain management specialist, indicated that the claimant underwent surgery on June 8, 2015, consisting of C4/5 and C5/6 discectomies and fusion with allograft and instrumentation.

Dr. Lavotshkin, the claimant's treating primary care physician, in a C-4.2 progress report dated May 2, 2016, indicated that the claimant sustained a scar after surgery, measuring about 2 to 3 inches.

At the hearing on October 14, 2016, the claimant testified that she is employed at two jobs: she works for the SIE as a bus driver and she is also employed as a preschool director (see Hearing Transcript, 10/14/16, p. 2). When questioned as to how her neck scar affects her in terms of her day-to-day life, the claimant responded that she performs a lot of "public speaking" within the preschool, including conferring with parents for parent-teacher conferences and during open houses (id. at p. 3), as well as going into classrooms to teach classes with the teachers and interact with the children (see id. at p. 7). The claimant explained that, with regards to her scar, what really impacts her most is that children come up to her and ask her who cut her throat (see id. at p. 3). On cross-examination, the claimant testified that she returned to full duty, full pay work as a bus driver in September 2015, and her wages continue to be the same, subject to seniority wage increases (see id. at pp. 3-4). She confirmed that her earning potential as a bus driver is impacted only by her seniority level (see id. at p. 5). With regard to her employment as a preschool director, the claimant testified that she also returned to that position around September 2015, and that she has worked at the preschool for 25 years, the past 8 years as the preschool director (see id. at pp. 5-6). Her wages have remained the same for the past eight years, with slight marginal increases (see id.). She stated that there are no opportunities for advancement within the preschool, as she has attained the highest position available, and wage increases would be determined by the Board of Directors dependent on her job performance (see id. at pp. 5-6).

On summation, the SIE's representative argued that the claimant should not receive a facial disfigurement award pursuant to WCL 15(3)(t)(2) because any facial disfigurement award with regards to the neck requires a present or future loss of earnings and, based on the claimant's testimony, there is none here (see id. at p. 8).

The WCLJ awarded the claimant $6,500.00 for a permanent facial disfigurement on the basis that the claimant has about a two-and-a-half-inch visible scar on her neck, and she testified that she interacts with the public. The SIE's representative noted his objection. The decision was memorialized by a Notice of Decision filed on October 19, 2016.

The SIE sought administrative review, arguing that the permanent facial disfigurement award was improper because there is no evidence of current or future loss of wage-earning capacity and no documentation indicating that the claimant's disfigurement is permanent. The SIE relied upon Matter of Cucci III v Rexer's Tang Soo Do Karate Academy (34 AD3d 887 [2006]) in support of its argument that the claimant failed to establish loss of wage-earning capacity.

In rebuttal, the claimant maintained that the WCLJ properly awarded her $6,500.00 for a permanent facial disfigurement to compensate her for any future loss of earnings she would be subject to as a result of her neck scar. The claimant further asserted that the SIE's argument regarding whether the scar had reached maximum medical improvement was unpreserved and had no basis in the record given the fact that the scar arose from a surgery performed more than one year prior.

LEGAL ANALYSIS

WCL 15(3)(t)(2) states in pertinent part:

"[t]he Board, if in its opinion the earning capacity of an employee has been or may in the future be impaired, may award compensation for any serious disfigurement in the region above the sterno clavicular articulations anterior to and including the region of the sterno cleido mastoid muscles on either side, but no award under subdivisions one and two shall, in the aggregate, exceed twenty thousand dollars."

In Matter of Cucci (34 AD3d 887 [2006]), the Court overturned a Board Panel decision to award a facial disfigurement award to a claimant with a neck injury. The Appellate Division's reasoning emphasized the absence of evidence that the claimant's neck scar impacted his wage-earning capacity, stating:

"[n]oticeably absent from the Board Panel's decision, however, is any mention of the impact of such disfigurement upon claimant's present or future earning capacity. To be sure, the statute on its face affords the Board significant latitude in determining whether a particular injury has affected or may in the future affect a claimant's earning capacity, and we are well aware of the distinction between being able to work and being able to find work based upon one's physical appearance. However, the Board Panel's decision contains neither a finding that claimant's present [nor future] earning capacity has been or may be impaired as a result of his disfigurement nor any facts from which such conclusion reasonably could be inferred. Under such circumstances, intelligent appellate review of the Board Panel's decision to award claimant compensation under [WCL 15 (3)(t)(2)] is not possible..."

Since Matter of Cucci was decided, the Board has consistently required claimants to present evidence that their disfigurement has impaired their wage-earning capacity (see e.g. Matter of Foster Wheeler, 2016 NY Wrk Comp 70014396; Matter of Greene Correctional Facility, 2015 NY Wrk Comp G0457771; Matter of Sodexho Food Services, 2010 NY Wrk Comp 50809952). In Sodexho Food Services, for instance, the Board Panel found that the claimant, who worked at "Mr. Subb" waiting on customers, had demonstrated that his scar impaired his wage-earning capacity because he testified that a customer did not want him to prepare a sandwich for her because she thought he had a disease due to his scar. The Board therefore found the claimant entitled to a facial disfigurement award of $8,000.00.

In this case, the record demonstrates that the claimant underwent surgery to her cervical spine on June 8, 2015, leaving her with a scar on her neck that measures about 2 to 3 inches. The claimant testified that she returned to regular, full-time work approximately three months after the surgery, in September 2015, at both of her pre-accident positions: as a bus driver for the SIE and as a preschool director. The claimant stated that her wages continue to be the same for her bus driver position, subject to seniority wage increases. For her position as a preschool director, her wages have remained the same for the past eight years, with slight marginal increases. Absent from the claimant's testimony is any indication that her jobs have changed in any way as a result of her neck scar. The claimant stated that the scar impacts her because she does a lot of public speaking at the preschool, but she did not go so far as to state that she has limited her public speaking engagements in any way due to the scar. According to the claimant, the primary way in which the scar has affected her work is that children see the scar and will ask her who cut her throat. However, the claimant did not testify that these questions have impacted her ability to perform her job or that other staff have asked her to alter her job duties in any way (contra Sodexho Food Services, 2010 NY Wrk Comp 50809952). It appears that, at most, the claimant's facial disfigurement has made it more uncomfortable for her to interact with the children, but her personal discomfort is insufficient to show an impact on her wage-earning capacity absent some indication that her job performance has suffered as a result, which would impair her ability to earn a raise in the future.

Moreover, the claimant failed to make any compelling argument that her wages could be impacted in the future. Significantly, there is no indication that the claimant, who is over 60 years old, may seek new employment and could be discriminated against during the hiring process as a result of her scar. Indeed, the claimant testified that she did not "intend to go anywhere" in her position as a school bus driver because she liked the work (Hearing Transcript, 10/14/16, p. 4). Moreover, the claimant testified that she had attained the highest position available in her job as a preschool director, where she has worked for the past 25 years, 8 of which have been spent in her current position. Even if the Board were to hypothetically consider a situation in which the claimant were to lose her employment and return to the job market, as the dissenting Board Panel member urges, it would be pure speculation to conclude that the claimant's disfigurement may impair her earning capacity in the future, as there has been no evidence that anyone involved in the claimant's line of work, including students, teachers, and other faculty, have reacted negatively toward her neck scar or required her to alter how she performs her job.

Therefore, the Full Board finds that because the claimant has failed to present any evidence that her neck scar has had or will have an impact on her wage-earning capacity, this claim is not amenable to a facial disfigurement award at this time. However, upon submission of evidence that claimant's earning capacity has been or may in the future be impaired as the result of her scar, the matter may be returned to the trial calendar to consider whether an award pursuant to WCL 15(3)(t)(2) is warranted.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed October 19, 2016, is REVERSED, without prejudice, to rescind the $6,500.00 award for a severe facial disfigurement and the attorney's fee. No further action is planned by the Board at this time pending receipt of evidence from the claimant of an impairment to her earnings.