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Case # G1095426
Date of Accident: 04/02/2014
District Office: NYC
Employer: Con Edison
Carrier: Consolidated Edison Co of NY
Carrier ID No.: W373005
Carrier Case No.: B478401066000101784
Date of Filing of Decision: 11/20/2017
Claimant's Attorney: Grey and Grey LLP
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on October 17, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed December 14, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant's schedule loss of use is subject to apportionment to preexisting osteoarthritis.

The Workers' Compensation Law Judge (WCLJ) found that apportionment applied based on claimant's preexisting osteoarthritis.

The Board Panel majority affirmed the WCLJ.

The dissenting Board Panel member would overrule the holding in Matter of Scally v Ravena Coeymans Selkirk Cent. School Dist., 31 AD3d 836 [2006], and find no apportionment of the claimant's schedule loss of use award in the present case.

The claimant filed an application for Mandatory Full Board Review on January 13, 2017, arguing that the Board Panel majority misapplied the rule in Matter of Scally (31 AD3d 836), as there was no evidence that the claimant's prior non-work-related arthritic condition was disabling in a compensation sense or would have resulted in a schedule loss of use if it had been work related.

The self-insured employer (SIE) filed a rebuttal on February 10, 2017, asserting that apportionment applies in the present case because if the claimant's osteoarthritis had been work related, the claimant would have been entitled to a schedule loss of use award.

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

FACTS

This claim for an April 2, 2014, injury to claimant's left shoulder was initially controverted by the SIE.

In a May 7, 2014, narrative report, the claimant's treating physician, Dr. Putterman, noted that claimant strained his left shoulder at work on April 2, 2014. The claimant reported having "some problems prior to this episode and had been getting gradually worse." Dr. Putterman referred the claimant to Dr. Simoncic for consultation for total left shoulder replacement.

In a C-4AUTH (Attending Doctor's Request for Authorization) based on a May 19, 2014, examination, Dr. Simoncic requested authorization to perform total left shoulder replacement surgery. Dr. Simoncic reported the claimant's left shoulder range of motion was significantly limited, with forward flexion of 100 degrees, external rotation of 20 degrees, and abduction of 90 degrees. Dr. Simoncic reported that pain from the rotator cuff prevented further testing. Dr. Simoncic found the claimant had post traumatic osteoarthritis of the left shoulder related to the work injury.

Claimant filed a C-3 (Employee Claim) on July 11, 2014, in which he reported injuring his left shoulder on April 2, 2014, when he moved a steel plate. The claimant indicated on the C-3 that he had not previously injured his left shoulder.

On August 26, 2014, the claimant was examined by carrier's consultant, Dr. Levin. In the resulting IME-4 (Independent Examiner's Report of Independent Medical Examination), Dr. Levin diagnosed exacerbation of left shoulder osteoarthritis, opined the claimant's injuries were causally related to the accident that occurred on April 2, 2014, and recommended left shoulder replacement surgery.

At a hearing held on September 9, 2014, the claimant testified he was a supervisor in steam operations for the employer, and he had worked there for 38 years. He was working on April 2, 2014, when he felt a pop in his left shoulder as he was moving a steel plate. On cross-examination, the claimant testified he never had an injury to his left shoulder, nor was he treated for a left shoulder injury. The claimant denied that he had been experiencing issues with his left shoulder prior to the work-related incident. By a decision filed September 12, 2014, the WCLJ directed the parties to complete depositions of the physicians, and scheduled the next hearing for review of the depositions and summations on the questions of accident, notice and causal relationship.

The claimant's treating physician, Dr. Putterman, was deposed on September 29, 2014, and testified that he treated the claimant for left shoulder issues he sustained in a work-related injury on April 2, 2014. Claimant reported that he had been experiencing problems with the left shoulder prior to the work injury which had been gradually getting worse. X-rays of the claimant's left shoulder revealed moderate to severe degenerative changes to the glenoid humeral joint with a large spur on the inferior humeral head and joint space narrowing. Dr. Putterman diagnosed severe osteoarthritis of the left shoulder, injected the shoulder with cortisone, and referred the claimant to a shoulder specialist. Dr. Putterman believed the claimant's shoulder condition was causally related to the work injury.

On cross-examination, Dr. Putterman testified the claimant's moderate to severe osteoarthritis preexisted his April 2, 2014, work injury and confirmed that claimant's history of experiencing left shoulder issues in the past was consistent with the natural progression of osteoarthritis. The osteoarthritis in claimant's left shoulder was not caused by straining the shoulder, and was not caused by one incident on a specific date. Dr. Putterman testified that claimant's shoulder complaints could have occurred even without trauma. Total shoulder replacement is treatment for end stage osteoarthritis. On re-direct examination, Dr. Putterman stated that trauma can exacerbate arthritis.

In a decision filed October 23, 2014, the WCLJ established the claim for the left shoulder, set the average weekly wage, found there was no compensable lost time, and authorized shoulder surgery.

Claimant was reexamined by Dr. Levin on November 18, 2014. In his IME-4 report, Dr. Levin noted that claimant reported he had not missed time after the injury, and he was currently working the same duties. Dr. Levin diagnosed exacerbation of left shoulder osteoarthritis, recommended total left shoulder replacement, and opined the claimant's injury should be apportioned 90% to the claimant's preexisting condition and 10% to the present injury.

The claimant underwent left total shoulder replacement surgery on January 23, 2015, performed by Dr. Simoncic.

At a hearing held on January 4, 2016, the WCLJ found no compensable lost time from April 2, 2014, until January 23, 2015, made awards from January 23, 2015, until April 8, 2015, at the temporary total rate of $803.21, and found no compensable lost time thereafter. The findings and awards made at the January 4, 2016, hearing are memorialized in a notice of decision filed January 7, 2016, which also directed the claimant to obtain a permanency opinion.

In a C-4.3 (Doctor's Report of MMI/Permanent Impairment) dated January 19, 2016, Dr. Simoncic reported that the claimant had reached maximum medical improvement, and had a schedule loss of use of the left shoulder of 66 2/3%, 50% for the left shoulder surgery, and 16 2/3% because of range of motion deficits. Dr. Simoncic found that claimant had 160 degrees of flexion, 50 degrees of external rotation, and 90 degrees of abduction. Dr. Simoncic noted that the claimant continued to experience weakness of the left shoulder, and he could not push, pull or lift any significant weight.

The claimant was examined by the carrier's orthopedic consultant, Dr. Light, on March 21, 2016. In the resulting IME-4 report, Dr. Light stated that claimant had a range of motion of 115 degrees of flexion (170-180 degrees normal), extension to 20 degrees (40 degrees normal), abduction to 150 degrees (170-180 degrees normal), adduction to 20 degrees (45 degrees normal), internal rotation to 80 degrees (80-90 degrees normal), and external rotation to 40 degrees (80-90 degrees normal). Dr. Light opined the claimant had a 65% schedule loss of use of the arm based on the 2012 Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity (2012 Guidelines), of which 50% was due to preexisting arthritis and 15% due to the work-related injury.

Dr. Simoncic was deposed on May 2, 2016, and testified that he had found a 66 2/3% schedule loss of use because the Board's 2012 Guidelines provide 50% for the total shoulder replacement, and 16 2/3% for the mild defects of internal and external rotation, and weakness. Dr. Simoncic testified that claimant never had issues with his left shoulder prior to the work injury, and claimant's arthritis became symptomatic as a result of the work injury.

On cross-examination, Dr. Simoncic was asked to review an x-ray and provide a percentage for what schedule loss of use was related to the work injury, and what was related to the preexisting arthritic condition. Dr. Simoncic testified the claimant's injury was 2/3 related to the work injury and 1/3 to the preexisting injury. Dr. Simoncic also testified it was possible the claimant would have required total left shoulder replacement surgery without the work-related accident, and conceded that he guessed the claimant's condition was 1/3 related to the preexisting injury. Dr. Simoncic testified that "we know he had some preexisting arthritis which was not very symptomatic and after the injury he was severely disabled and required replacement surgery. I don't know what else to add to that." On re-direct examination, Dr. Simoncic testified he removed arthritis from the shoulder when he performed the surgery, and he provided the schedule loss of use opinion based on the surgery and the residual effects of the total shoulder replacement.

In a reserved decision filed May 13, 2016, the WCLJ found the claimant had a 66 2/3% schedule loss of use of the arm, and apportioned 2/3 to the work injury and 1/3 to preexisting osteoarthritis. As such, the WCLJ awarded the claimant a 44.45% schedule loss of use of the left arm, and awarded a fee of $3,900.00 to the claimant's attorneys.

The claimant filed an application for administrative review arguing that apportionment was inappropriate. The claimant argued that when, as here, an injured worker is able to perform his duties at the time of the work-related accident, despite having a preexisting injury, apportionment is not appropriate.

In rebuttal, the SIE argued that apportionment applied in this case because if the claimant's arthritis had been work related, it would have resulted in a schedule loss of use.

LEGAL ANALYSIS

Apportionment of Claimant's Schedule Loss of Use

As a general rule, "'apportionment is not appropriate where the claimant's prior condition was not the result of a compensable injury and such claimant was fully employed and able to effectively perform his or her duties despite the noncompensable preexisting condition' (Matter of Bruno v Kelly Temp Serv., 301 AD2d 730 [2003]). The determinative issue in such cases is whether the claimant's prior condition constitutes 'a disability in a compensation sense'" (Matter of Krebs v Town of Ithaca, 293 AD2d 883 [2002], lv denied 100 NY2d 501 [2003], quoting Matter of Carbonaro v Chinatown Sea Food, 55 AD2d 756 [1976]).

However, "[a]pportionment may be applicable in a schedule loss of use case if the medical evidence establishes that the claimant's prior injury - had it been compensable - would have resulted in a schedule loss of use finding" (Matter of Wilcox v Niagara Mohawk Power Corp., 69 AD3d 1264 [2010]; see also Matter of Scally v Ravena Coeymans Selkirk Cent. School Dist., 31 AD3d 836, [2006]; Matter of Trathen Logging Co., Inc., 2003 NY Wrk Comp 70000913 [2003]).

The rule established in Trathen Logging results in apportionment only in those cases in which there is objective medical evidence that claimant's preexisting condition resulted in residual permanent physical and functional impairments, such as loss of range of motion or anatomical loss, which would have resulted in an award had the condition been work related (see Matter of Wilcox, 69 AD3d 1264). Absent such objective evidence, "any opinion regarding a preexisting loss of use would be entirely speculative" (id.).

Here, there is no objective medical evidence that claimant had a preexisting physical or functional impairment of his shoulder which would have resulted in an award had the condition been work related. Claimant, in fact, did not seek treatment for his shoulder prior to his work-related injury. In the absence of any objective evidence of claimant's preexisting impairment, an opinion concerning preexisting loss of use, such as that of Dr. Light, is entirely speculative (see Matter of Wilcox, 69 AD3d 1264).

Therefore, the Full Board finds that apportionment is not appropriate in this case.

Attorneys' Fees

The claimant's attorneys request an additional fee of $8,300.00, and submits fee application in support of the request. The fee application (OC-400.1) dated June 13, 2016, submitted with the application for administrative review, indicated that the time spent on the initial appeal was two hours and the fee application dated January 13, 2017, submitted with the application for Mandatory Full Board, indicates the time spent on the application for administrative review was three hours and the time spent on the application for Mandatory Full Board Review was two and a half hours. In the decision filed January 7, 2016, the WCLJ granted the claimant's attorneys a fee of $750.00, and the WCLJ granted the claimant's attorneys an additional fee of $3,900.00 in the Reserved Decision dated May 13, 2016.

Pursuant to Workers' Compensation Law § 24, all attorney fee requests must be approved by the Board and "[t]he Board is vested with 'broad discretion with regard to the approval of counsel fees' (Matter of Pavone v Ambassador Transp., Inc., 26 AD3d 645 [2006]; see Matter of Grasso v Brewster Cent. School Dist., 81 AD3d 1060 [2011])" (Matter of Kennedy v New York City Dept. of Corr., 140 AD3d 1572 [2016]). Before approving a fee request, the Board must consider the extent of the services rendered and the financial status of the claimant. Factors relevant in determining the value of the legal services rendered include "the nature and extent of the services, the actual time spent, the necessity therefor, the nature of the issues involved, the professional standing of counsel, and the results achieved" (Jordan v Freeman, 40 AD2d 656 [1972] [citation omitted]). In addition, the fee must not be based solely upon the amount of compensation awarded (see 12 NYCRR 300.17[f]).

12 NYCRR 300.17(d) requires a written application (form OC-400.1) for an attorney's fee that is requested for an amount greater than $450 and states that "[a]ny form OC-400.1 filed shall be accurately completed." The Board may find a form OC-400.1 deficient if the attorney requesting a fee fails to indicate the "date, description, and amount of time spent on each service" (Matter of Fernandez v Royal Coach Lines, Inc., 146 AD3d 1220 [2017], quoting Board Subject Number 046-548, dated May 28, 2013). The Board may also find a fee application deficient if the information that is required to be provided on the form is not legible (Matter of Tenecela v Vrapo Constr., 146 AD3d 1217 [2017]). Upon finding the attorney's fee application to be deficient, it is not an abuse of discretion for the Board to reduce "the award to $450, the maximum allowed absent the required form (see 12 NYCRR 300.17[d][1]; Matter of Kennedy v New York City Dept. of Corr., 140 AD3d 1572 [2016])" (Fernandez, 146 AD3d 1220 [2017]; see also Tenecela, 146 AD3d 1217 [2017]).

Here, the claimant's attorneys successfully argued that liability should not be apportioned to the claimant's preexisting osteoarthritis. The claimant's attorneys either spent an additional four and one half or five and one half hours on their two appeals. However, the discrepancy in the amount of time spent on the application for administrative review between the two OC-400.1 forms is troubling, and claimant's counsel reminded they are obligated to accurately detail the date, description and amount of time spent on each service in all fee applications (12 NYCRR 300.17[d]).

Therefore, the Full Board finds the claimant's attorneys are awarded an additional fee of $1,500.00.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed May 13, 2016, is MODIFIED to find that there is no apportionment of claimant's schedule award of 66 and 2/3% of the left arm. In all other respects, the decision is affirmed. The Full Board also awards claimant's attorneys an additional fee of $1,500.00. No further action is planned by the Board at this time.