Skip to Content

Workers' Compensation Board

Language Assistance: (877) 632-4996 | Language Access Policy

 


Case # G1032004
Date of Accident: 01/03/2014
District Office: Albany
Employer: NYS Dept of Transportation
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 66894734
Date of Filing of Decision: 11/20/2017
Claimant's Attorney: William D. McGillicuddy Law Office PC
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 amended Board Panel Memorandum of Decision filed November 30, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is the appropriate schedule loss of use (SLU) of the claimant's left arm.

The Workers' Compensation Law Judge (WCLJ) awarded the claimant a 25% SLU of the left arm.

The Board Panel majority modified the WCLJ decision to find that the claimant has a 50% SLU of the left arm.

The dissenting Board Panel member would find that claimant has a 27.5% SLU of the left arm.

The carrier filed an application for mandatory Full Board Review on December 21, 2016, arguing that a 27.5% SLU of the left arm is warranted.

The claimant did not file a timely rebuttal.

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

FACTS

This case is established for a work-related injury to the claimant's left shoulder sustained on January 3, 2014.

The claimant had surgery performed by Dr. Hyman, an orthopedic surgeon, on his torn rotator cuff on May 6, 2014.

Dr. Hyman filed a C-4.3 (Doctor's Report of MMI/Permanent Impairment) and attached narrative based on an April 9, 2015, examination of the claimant. The doctor opined that the claimant has a 50% SLU of the left arm calculated pursuant to the Board's 2012 Impairment Guidelines (2012 Guidelines). The doctor calculated the SLU by assessing 15% based on claimant's rotator cuff surgery (2012 Guidelines, p. 24); 20% based on flexion of claimant's left shoulder to 130 degrees (2012 Guidelines, p. 24, Table 2.11); and 15% loss due to moderate defects of internal and external rotation (2012 Guidelines, p. 24).

Dr. Schulman, the carrier's orthopedic consultant, examined claimant on June 9, 2015. In the resulting IME-4 (Independent Medical Examiner's Report of Independent Medical Examination), Dr. Shulman indicated that extension of both shoulders was to 40 degrees, internal rotation posteriorly was to D9-D10, slightly greater on the right than on the left, external [rotation] was to 40 degrees, assisted elevation was to 150 degrees and assisted abduction to 145 degrees on the left. The doctor opined that the claimant's rotator cuff strength was slightly diminished. Dr. Schulman diagnosed the claimant with traumatic impingement syndrome, left shoulder, with rotator cuff tear, and biceps tenosynovitis. The doctor opined that the claimant had an SLU of 25% of the left shoulder calculated as 10% due to the left shoulder rotator cuff repair, 10% due to loss of flexion, and 5% due to loss of rotation.

Dr. Schulman was deposed on October 5, 2015, and testified that he examined the claimant on July 8, 2014, October 14, 2014, and June 9, 2015. Based upon his examination of the claimant's left shoulder on June 9, 2015, the claimant had a 25% SLU of the left shoulder. Based on the 2012 Guidelines, he found that the claimant had 10% loss of use due to the left shoulder rotator cuff repair, 10% due to the loss of flexion, and 5% due to the lack of slight rotation. Normal abduction is 180 degrees and the claimant had only 145 degrees of abduction on the left side. The doctor opined that the claimant had a positive Neer's impingement sign indicating some inflammation in the rotator cuff. The doctor stated that there can be a subjective component to findings of ranges of motion. Claimant's external rotation was 50 degrees and that normal was in the range of 50 to 70.

Dr. Hyman was deposed on October 21, 2015, and testified that on May 6, 2014, he performed an arthroscopic rotator cuff repair with an arthroscopic subacromial decompression, and a biceps tenodesis on the claimant. He used a goniometer to make measurements and he found active forward elevation to 120 degrees and passive to 130 degrees. Internal rotation was to L2, less than opposite side of T12. He used the 2012 Guidelines to determine that the claimant has a 50% SLU. When asked how he determined that claimant had moderate defects of internal and external rotation, Dr. Hyman responded that "it's sort of a combination. So internal rotation was actually severe. External rotation was mild. So between the two, it became moderate" (deposition, Dr. Hyman, 10/21/15, p. 8).

In a reserved decision filed on February 24, 2016, the WCLJ awarded a 25% SLU based upon Dr. Schulman's findings, and tentatively awarded the claimant's attorney a fee of $3,260.50, directing the carrier to withhold the fee pending receipt of a properly completed fee application.

On March 21, 2016, the claimant filed a request for administrative review of the WCLJ reserved decision, arguing the SLU opinion of Dr. Hyman was more credible than that of Dr. Schulman. Claimant requested that the Board Panel award claimant a 50% SLU of the left arm and approve an increased fee to claimant's attorney. The claimant's attorney filed two OC-400.1s (Application for a Fee by Claimant's Attorney or Representative) with the Board on March 21, 2016. The first requested a fee of $3,260.50 for services performed during the period March 21, 2014, to March 21, 2016, for 40.2 total hours spent on the file to date. The second OC-400.1 requested a fee of $7,000.00 for services performed from March 21, 2014, to March 21, 2016, for 45.9 total hours spent on the file to date.

The carrier argued in rebuttal that the WCLJ properly found a 25% SLU of the claimant's left arm based upon the report and testimony of Dr. Schulman.

In a supplemental decision filed September 30, 2016, the WCLJ directed that carrier pay the attorney's fee of $3,260.50 previously withheld.

LEGAL ANALYSIS

In evaluating the medical evidence presented, the Board is not bound to accept the testimony or reports of any one expert, either in whole or in part, but is free to choose those it credits and reject those it does not credit (see Matter of Morrell v Onondaga County, 238 AD2d 805 [1997], lv denied 90 NY2d 808 [1997]; Matter of Wood v Leaseway Transp. Corp., 195 AD2d 622 [1993]). Thus, questions of credibility, reasonableness, and relative weight to be accorded to conflicting evidence are questions of fact that come within the exclusive province of the Board (see Matter of Berkley v Irving Trust Co., 15 AD3d 750 2005]).

Special Consideration 8 of the 2012 Guidelines provides that for shoulder injuries, a rotator cuff tear, with or without surgery, is given a 10-15% SLU of the arm, to which additions may be made for mobility defects (2012 Guidelines, p. 24). Here, Dr. Hyman found that the claimant had a 15% SLU due to the torn rotator cuff and the subsequent surgery and the value was within the range provided by the Guidelines (10-15%), while Dr. Schulman attributed a 10% SLU based on claimant's torn rotator cuff. The Full Board finds that pursuant to Special Consideration 8 of the 2012 Guidelines, based on claimant's rotator cuff which was successfully surgically repaired, a 10% SLU is warranted.

With respect to anterior flexion of the shoulder, the 2012 Guidelines indicate that normal anterior flexion of the shoulder is 180 degrees, and provide SLU percentages for deficits as follows: flexion to 0 degrees/ankylosis = 80%; flexion to 25 degrees = 70%; flexion to 45 degrees = 60%; flexion to 90 degrees = 40%; and flexion to 135 degrees = 20%. Dr. Hyman found the claimant had flexion to 130 degrees and assessed a 20% SLU based on that deficit, while Dr. Schulman found that the claimant had flexion to 150 degrees for which he found a 10% SLU. The Full Board finds that Dr. Schulman's assessment that claimant had anterior flexion to 150 degrees to be credible. While the Guidelines do not expressly provide for the assessment of a 10% SLU based on anterior of the shoulder to 150 degrees, the Full Board finds that the assessment of a 10% SLU based on claimant's limitation with respect to anterior flexion is reasonable and is not inconsistent with the Guidelines. Moreover, the carrier clearly concedes that pursuant to the opinion of its expert, Dr. Schulman, claimant should be assessed a 10% SLU based on anterior flexion deficits.

Both Drs. Hyman and Schulman determined that the claimant had internal and external rotation defects. Dr. Hyman assessed a 15% SLU due to moderate defects of internal and external rotation calculated by combining his findings of severe internal rotation defects and mild external rotation defects. Dr. Schulman found the claimant had a mild loss of rotation and assessed a 5% SLU (the Guidelines provide that a 7.5% SLU should be found for a mild defect in internal or external rotation). The Full Board finds that Dr. Hyman credibly concluded, consistent with the Guidelines, that claimant had overall moderate defects of internal and external rotation, which warrants the assessment of a 15% SLU.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant has a 35% SLU of the left arm, calculated by assessing 10% based on claimant's surgically repaired rotator cuff tear, 10% based on restrictions of anterior flexion, and 15% based on moderate defects of internal and external rotation.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed on February 24, 2016, is MODIFIED to award claimant a 35% SLU of the left arm. No further action is planned by the Board at this time.