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Case # G1104799
Matter of CCA Civil Inc
2016 NY Wrk Comp G1104799

BOARD PANEL DECISION

By: Board Members Paprocki, Munnelly and Hull

Ruling:

The carrier is requesting review of the Workers' Compensation Law Judge's (WCLJ's) decisions filed on October 15, 2015. A timely served rebuttal has been received.

ISSUES

The issues presented for administrative review are:

  1. Whether the claimant has a 60% Schedule Loss of Use (SLU) of the left arm.
  2. Whether the attorney's fee in this matter is commensurate with the services rendered.

FACTS

This case has been established for the left shoulder with an average weekly wage of $2,125.00. There has been no lost time in this case. The claimant underwent conservative treatment. An MRI of the left shoulder was performed on April 28, 2014 showing that the claimant had a rotator cuff tear. While the claimant's attending physicians have recommended surgery, the claimant has declined surgical intervention.

The claimant was examined on February 10, 2015 by Dr. Daniel Savarino who concluded that the claimant has a 77.5% SLU based on 20% for loss of flexion, 30% for loss of abduction, 7.5% for decreased adduction, 10% for loss of internal rotation and 10% for rotator cuff tear.

The carrier had the claimant examined by Dr. Stanley Soren on March 9, 2015. The claimant was found to have forward flexion of 75 degrees, external rotation to 45 degrees, and extension to 20 degrees. The physician concluded that the claimant has a 47.5% SLU of the left arm.

The Board issued a Proposed Decision on April 1, 2015 directing the parties to depose both doctors if a resolution cannot be reached.

Dr. Savarino testified at a deposition held on May 13, 2015. The doctor diagnosed the claimant with a labral tear and a high grade partial thickness rotator cuff tear after diagnostic testing. He treated the claimant conservatively on a monthly basis. The doctor recommended surgery, but the claimant declined because he did not want to miss time from work. Dr. Savarino performed a permanency evaluation on February 10, 2015. His range of motion, using a goniometer, was 87 degrees on abduction with active range of motion and 109 degrees passive. His external rotation was 85 degrees. His internal rotation was 15 degrees. The claimant's flexion range of motion was 117 degrees actively and 135 degrees passively. He concluded based on the range of motion findings, that the claimant has a 77.5% SLU of the left arm. The doctor stated he used the Workers' Compensation Medical Guidelines. The doctor used the passive numbers to reach his conclusion. The claimant had no atrophy. The doctor added 7.5% for adduction because the claimant had a difficult time reaching behind his back. He also added 10% for the rotator cuff tear based on a special consideration in the guidelines.

On cross-examination, the doctor stated he is familiar with the fact that the claimant works as a truck driver, but does not know specifically what the claimant does and if the claimant has to perform work at or above shoulder level on a daily basis. If the claimant underwent surgery or a further injection, the claimant's left shoulder could potentially heal further and improve. Range of motion does have a subjective component and there was no atrophy in the claimant's shoulder. This suggests that the claimant is able to use the left arm and his muscles have not deteriorated. The doctor did not compare the range of motion to the claimant's right arm aside from abduction.

Dr. Soren testified at a deposition on May 20, 2015. He examined the claimant on two occasions with the second time on March 9, 2015 for the purposes of a permanency evaluation. The claimant had 90 degrees of abduction and 75 degrees on forward flexion. The external rotation was to 45 degrees. Extension was to 20 degrees. Internal rotation was to the T12. The claimant had no atrophy. Surgery would be warranted for the shoulder, but the claimant declined it. He found a 47.5% SLU of the left arm based on the rotator cuff tear and the claimant's range of motion findings. The doctor stated when you add up all the findings, they go above a 47.5%, but that is because you add in all the small numbers. However, the doctor stated that with the upper extremity, the claimant "is really not disabled more than, less than 50% number, which I felt the 47.5 was accurate." (Minutes 5/20/15 p.22). The claimant does have some functional use of his arm. Furthermore the claimant is working full time. That is why in this case, the doctor stated you cannot just go by adding up the numbers in the guidelines.

On cross-examination, Dr. Soren testified that he considered the claimant's ability to work when making the determination on the SLU. He also considered that it was not the claimant's dominant arm. The doctor stated that the guidelines do not call for these to be considered when assessing an SLU. The doctor agreed there is no evidence that the claimant was malingering. He stated that 90 degrees of abduction warrants a 40% SLU. The doctor also agreed that 90 degrees in forward flexion is a 40% SLU as well. A rotator cuff tear per the guidelines is a 10% to 15% SLU. The doctor felt that the claimant's external rotation was not a marked deficit. The doctor also stated he did not test for adduction. A mild defect would be 7.5 to 10% SLU by itself. The doctor opines his experience would dictate that you should not add all the deficits together under the circumstances in this case.

At the October 9, 2015 hearing, the WCLJ found that the claimant has a 60% SLU of the left arm. The WCLJ reasoned to this conclusion by finding a 20% for loss of flexion, 30% for the range of motion in abduction and 10% for the rotator cuff tear. The WCLJ also found the claimant entitled to an additional 45.4 weeks of benefits due to a protracted healing period (PHP). These findings are memorialized in a decision filed on October 15, 2015.

The claimant's attorney filed an OC-400.1 (Application for a Fee by Claimant's Attorney or Representative) with the Board on October 13, 2015. The application indicates that the attorney performed 18.25 hours of services on the claimant's behalf between April 24, 2014 and October 9, 2015, and had not previously received a fee. The OC-400.1 states that the claimant's attorney appeared at hearings, filed written summations, attended depositions, prepared and reviewed Board forms and performed other services on the claimant's behalf.

In a decision filed on October 15, 2015, the WCLJ awarded the claimant's attorney a fee in the amount of $22,500.00.

LEGAL ANALYSIS

The carrier seeks administrative review, requesting that the WCLJ's decisions be reversed and that it be found that the claimant has a 47.5% SLU of the left arm. The record does not support a 60% SLU as the WCLJ impermissibly substituted his judgment in lieu of the medical opinions in the file. The carrier argues that the WCLJ exceeded the scope of his discretion as the WCLJ split the difference between the findings of the medical witnesses. The carrier argues that the guidelines are useful criteria in determining a SLU, but the ultimate determination rests with the Board and must be supported by substantial evidence. In this case, the claimant works in a physically demanding job and has not lost time from work. Dr. Soren called on his judgment and experience when rendering his opinion. He used the entire clinical/functional picture, including the claimant's right hand dominance in making his determination. Finally, the decision should also be modified as the decision found 45.4 weeks of PHP. This was in error as the claimant had no lost time.

In response, the claimant requests that the decision be affirmed. The claimant argues that a 60% SLU of the left arm is supported by the medical evidence. The WCLJ made the finding based on Dr. Savarino's actual findings and calculated the 60% SLU by using the doctor's actual findings so the WCLJ was not substituting his own opinion for all of the doctors. The WCLJ took the doctor's findings and properly applied the Board Medical Guidelines. Furthermore, the claimant agrees that there is no PHP in this matter.

Schedule Loss of Use (SLU) of the Left Arm

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]).

Per the Board Medical Guidelines 2.5, 135 degrees on flexion equals a 20% SLU. Abduction to 90 degrees equals a 40% SLU. The Guidelines specifically state not to add mild defects of internal and external rotation so as to avoid cumulative values. A mild defect of adduction equals a 7.5% SLU of the arm. Furthermore, under Special Consideration number 8, a rotator cuff tear with or without surgery is given 10-15% loss of use of the arm.

Utilizing Dr. Savarino's passive range of motion findings while properly applying the 2012 New York State Permanency Guidelines, a finding that the claimant has a 50% SLU of the left arm is supported by a preponderance of the evidence and the applicable law.

The claimant's abduction range of motion was 109 degrees. Given that 90 degrees equals a 40% loss, 109 degrees is reasonably a 30% loss of use. Dr. Savarino added an additional cumulative value for external rotation that is not permitted under the Guidelines. As far as Dr. Savarino's finding of 7.5% for the claimant's loss of adduction is concerned, the Board Panel will not consider this finding since it was subjective, i.e., the doctor stated the claimant had difficulty reaching behind his back. However, the doctor did not actually specify the objective range of motion. With a 10% added on for the rotator cuff tear, and 10% added on for the loss of internal rotation, 50% is reached. The claimant's flexion range of motion was to 135 degrees, which equals a 20% loss of use, but will not be considered in light of the recent finding of the Full Board in Matter of NFTA Metro, 2016 NY Wrk Comp G0489491. In that case, the Full Board concluded "that there is no support in the law to automatically add flexion and abduction together when calculating for a schedule loss of use of the shoulder." Thus, the Full Board allowed for the facts of each case to dictate how the 2012 Guidelines are applied, and neither precluded nor required the addition of flexion and abduction when computing an arm (shoulder) SLU. The Board Panel concludes that a 50% SLU is supported given the findings of 30% for the abduction range of motion, 10% for the rotator cuff tear and 10% for the loss of internal rotation.

The Board further finds that the PHP findings are rescinded as the findings were clearly made in error as the claimant did not have lost time in this case.

Attorney's Fee

Pursuant to WCL § 24, all attorney fee requests must be approved by the Board. WCL § 24 vests in the Board broad discretion with regard to the approval of counsel fees (see Matter of Rodd v Coram Fire Dist., 12 AD3d 890, 785 NYS2d 753 [2004]; Matter of Marchese v New York State Dept. of Correctional Servs., 293 AD2d 920, 741 NYS2d 306 [2002].

Board Rule 300.17(h) provides that "[n]o fee shall be awarded to a claimant's attorney or licensed representative unless the attorney or licensed representative has complied with the requirements of this section.

Counsel fees, when approved by the Board, are a lien upon 'compensation awarded' (WCL § 24). The definition of compensation includes 'the money allowance payable to an employee or to his [or her] dependents as provided for in this chapter' ([WCL] § 2[6])" (Matter of Shea v Icelandair, 63 AD3d 30 [2009]).

Rule 1.5(a) of the Rules of Professional Conduct (22 NYCRR 1200.0) prohibits a lawyer from charging or collecting an excessive fee. The Board is permitted to reduce an excessive attorney's fee if it is based upon "improperly inflated" or "exaggerated" claims of work performed on claimant's behalf (Matter of Kennedy v NYC Dept. of Corrections, _AD3d_, 2016 NY Slip Op 05218).

"No fee shall be approved or fixed in accordance with 12 NYCRR 300.17(f), for the services of any . . . attorney or licensed representative with fee who has failed or neglected to serve and file the required notice of retainer and appearance or the required notice of substitution" (12 NYCRR 300.17[c]).

If the fee requested is in excess of $450, an attorney shall file an application upon an accurately completed form OC-400.1 (12 NYCRR 300.17[d]).

No fee in excess of $450 shall be awarded to a claimant's attorney if the OC-400.1 is not accurately completed, including the time spent on the services rendered (12 NYCRR 300.17[d][1], [e], [h]; but see Matter of Pavone v Ambassador Transp., Inc., 26 AD3d 645 [2006]).

Pursuant 12 NYCRR 300.17(f), "Whenever an award is made to the claimant who is represented by an attorney or a licensed representative with fee, and a fee is requested, the board in such case shall approve a fee in an amount commensurate with the services rendered and having due regard for the financial status of the claimant and whether the attorney or licensed representative engaged in dilatory tactics or failed to comply in a timely manner with board rules. In no case shall the fee be based solely on the amount of the award."

There is no case law, statute or regulation that distinguishes between fees in different types of permanency cases or that mandates a definitive formula for the calculation of fees in a permanent partial disability case, a schedule loss of use case or case where the claimant is receiving temporary partial disability. Rather, the Board is required, in all cases, to determine the value of the legal services based upon "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" (Matter of Jordan v Freeman, 40 AD2d 656 [1972]). Put another way, there is no such thing as a "classification fee" or a "schedule fee."

The claimant is awarded a 50% SLU of the left arm entitling him to 156 weeks of benefits at the weekly rate of $803.21. The claimant is entitled to an SLU award in the amount of $125,300.76. The claimant's attorney submitted an OC-400.1 on October 13, 2015, requesting a fee in the amount of $22,500.00, which would be nearly 18% of the claimant's SLU award. The attorney's fee is excessive in comparison to the amount of work performed on the case. The OC-400.1 indicates the attorney performed 18.25 hours of services on the claimant's behalf between April 24, 2014 and October 9, 2015. The claimant's counsel, prior to the hearing on October 9, 2015, had not been awarded any fee. The OC-400.1 states that the claimant's attorney appeared at hearings, filed written summations, attended depositions, prepared and reviewed Board forms and performed other services on the claimant's behalf.

Based on the clear language of Board Rule 300.17(f), an attorney's fee shall not be formulaically based solely on the amount awarded to a claimant. In this matter, the claimant was awarded $125,300.76. An attorney's fee in the amount of $22,500.00 is not commensurate with the services rendered by the claimant's attorney in this case. The fee is excessive in comparison to the amount of work performed. It appears that the WCLJ awarded an attorney's fee based on a percentage of the money moving to the claimant based on the schedule loss of use awarded. From a review of the record and the hearing minutes from October 9, 2015, it does not appear that the WCLJ awarded the fee based upon the work the claimant's counsel performed as outlined in the OC-400.1. Given the amount of hours the claimant's attorney expended in this matter, a fee of $22,500.00 would result in the claimant's attorney receiving a fee that amounts to an hourly rate of over $1,200.00 per hour. Further, even if the fee request were proportionally reduced to reflect the 50% SLU, to, for example, $18,750, that would still amount to an hourly rate of over $1,000 per hour.

While the claimant's counsel clearly performed a substantial amount of work on the claimant's behalf and is entitled to a fee that is commensurate with that work, the fee of $22,500.00 is disproportionate and excessive in comparison to the amount of work performed. Even if proportionately reduced to a request of $18,750 upon a 50% SLU, that request would still be disproportionately excessive. Granting this fee would perpetuate the notion that the fee is solely based on the amount of the award, which is impermissible under 12 NYCRR 300.17(f). The WCLJ must consider the overall value of the work performed and services rendered, along with the financial status of the claimant, when approving an attorney's fee request.

As such, a rescission of the attorney's fee awarded by the WCLJ in this case is required under Board Rule 300.17(f). Given 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, the claimant's attorney is entitled to a fee in the amount of $8,000.00. The Board Panel finds that this amount is commensurate with the services the claimant's attorney rendered on the claimant's behalf in this matter.

Therefore, the Board Panel finds, upon review of the record and based upon a preponderance of the evidence, that the decision is modified to find that the claimant has a 50% schedule loss of use of the left arm, and to rescind the PHP findings. Furthermore, the claimant's attorney fee is modified to $8,000.00.

CONCLUSION

ACCORDINGLY, the WCLJ's decisions filed on October 15, 2015 are MODIFIED to find that the claimant has a 50% SLU of the left arm, and claimant's attorney is entitled to a fee in the amount of $8,000.00. The finding that the claimant is entitled to an additional 45.4 weeks of PHP is rescinded as the claimant had no lost time in this matter. The decisions are AFFIRMED in all other respects. No further action is planned at this time.

All concur.