Text of the Board’s decision. Publisher headnotes and editorial material are omitted. Linked from the SLU Worksheet notes.
Workers' Compensation Board State of New York
Case No. G209 8201
Carrier ID No. A00001973173 W076889
January 24, 2024
Erie Insurance Company Workers' Comp PO Box 22840
Rochester, NY 14692
Law Firm of Alex Dell, PLLC 450 New Karner Road Albany, NY 12205
Hamberger & Weiss Attorneys at Law 700 Main Place Tower 350 Main Street Buffalo, NY 14202
Alison Kent-Friedman State Dept of Law Labor Bureau 28 Liberty St.
New York, NY 10005
Date of Accident 5/15/2019
In Notices of Decision Regarding Application for Full Board Review (EBRB-5) filed on September 16, 2022, and November 4, 2022, the parties were notified that the applications for Full Board Review filed by the claimant on April 6, 2022, and September 9, 2022, were denied. However, the Full Board, at its meeting held on December 19, 2023, resolved that the MOD filed in this matter on March 8, 2022, as amended by the MOD filed on August 30, 2022, be rescinded. The Full Board directed that this matter be returned to the Board Panel for a new decision consistent with the determination of the Full Board. The carrier requests review of the Workers' Compensation Law Judge (WCLJ) reserved decision filed December 7, 2021. The claimant filed a rebuttal.
The issue presented for administrative review is the schedule loss of use (SLU) of claimant's left arm.
This claim is established for a left shoulder injury that resulted from an accident on May 15, 2019. On June 19, 2019, an MRI of the left shoulder showed, among other things, a complete tear of the supraspinatus tendon. The MRI also showed a probable complete tear of the long head of the biceps tendon.
On March 19, 2020, claimant underwent an arthroscopic left shoulder synovectomy, debridement of the labrum, and rotator cuff repair, performed by Dr. Sullivan. In a January 8, 2021, report, Dr. Sullivan noted that claimant had range of motion in his left shoulder of abduction to 90 degrees, and forward flexion to 140 degrees.
On February 17, 2021, Dr. Kircher performed an independent medical examination of the claimant on behalf of the carrier. In his report, Dr. Kircher noted left shoulder ranges of motion of forward flexion to 130 degrees, abduction to 110 degrees, posterior extension to 45 degrees, external rotation to 50 degrees, internal rotation to 40 degrees, and adduction to 30 degrees. Dr. Kircher diagnosed the claimant with a massive left rotator cuff tear. He opined that the claimant had a 48.5% SLU of the left arm, with 38.5% attributable to range of motion deficits in the left shoulder and 10% attributable to a diagnosis of a rupture of the long head of the biceps, pursuant to Special Consideration #6 of Section 5.5 Special Consideration #6 (Shoulder) of the 2018 Workers' Compensation Guidelines for Determining Impairment (Guidelines).
On June 4, 2021, Dr. Sullivan filed a C-4.3 (Doctor's Report of MMI/Permanent Impairment), based on an examination performed on May 17, 2021. Dr. Sullivan noted ranges of motion of abduction to 100 degrees, external rotation to 40 degrees, forward flexion to 90 degrees, and internal rotation to 90 degrees. Dr. Sullivan concluded that the claimant had a 49% SLU of the left arm, based solely on deficits in range of motion.
On September 13, 2021, the parties deposed Dr. Kircher, who testified with respect to the range of motion deficits in claimant's left shoulder that:
“Those ranges of motion were not predicated or based on a resection or a tear of the long [] head of the biceps tendon. Although the [longhead] of the biceps tendon, I suppose, could give you some very mild losses of use of the shoulder, the degree of range of motion that we're seeing in the shoulder and how that related to the scheduled loss of use, was secondary to a massive rotator cuff tear that we see” (Deposition, Dr. Kircher, 9/13/21, p. 7).
The parties submitted written summations and on September 20, 2021, the claimant's attorney also filed an Application for a Fee by Claimant's Attorney or Licensed Representative (OC-400.1) to request a fee in the amount of $14, 000.00 for a total of 11.45 hours of work done on this claim on dates between June 19, 2019, and September 14, 2021. The claimant's attorney reported that no fee had previously been received. The form was signed by the claimant indicating that he had no objection to the fee requested.
By a reserved decision filed on December 7, 2021, the WCLJ credited the opinion of Dr. Kircher, and awarded the claimant a 48.5% SLU of the left arm, with a protracted healing period of 9.4 weeks, for a total award amount of $131, 505.93. The WCLJ also approved a $14, 000.00 fee to claimant's counsel.
The carrier requests administrative review, arguing that based on the Guidelines, the record supports a finding that claimant has a 33.33% SLU of the left arm.
In rebuttal, claimant argues that the WCLJ decision should be affirmed.
Section 5.4 of the Guidelines states that “[t]o determine the overall [SLU] of the shoulder, first assess whether any special considerations apply.” If no special considerations apply, the Guidelines provide that the SLU should be determined based on range of motion deficits. The instructions to Chapters 2 through 8 of the Guidelines contain identical language providing that if no special considerations apply, the overall SLU is determine based on deficits in range of motion of the relevant injured body part.
Special Consideration #6 of Section 5.5 of the Guidelines applies to the shoulder and states:
“Non-surgical rupture of the long head of the biceps muscle is equal to 10-15% loss of use of the arm. Rupture at the distal point of insertion of the biceps is equal to 20% loss of use of the arm. Taking into consideration mobility and muscle weakness, the schedule can vary up to 33 1/3% loss of use of the arm depending on the degree of impairment found.” Thus, Special Consideration #6 would seem to limit the SLU that can be awarded for a shoulder in a case where the claimant sustains a biceps rupture to 33.3%.
Special Consideration #4 of Section 7.5 of the Guidelines also appears to similarly limit the SLU of the leg that can be awarded based on a knee injury to 10% when there is a diagnosis of chondromalacia patella, stating that “[c]hondromalacia patella, mild to marked degree, equals 7 1/2 - 10% loss of use of the leg, depending on the deficits of motion and atrophy of muscles found.” However, the Appellate Division, Third Department has found that in some certain circumstances, this interpretation of the Guidelines was “irrational and runs afoul of the purpose of [WCL] § 15(3)” (Matter of Blue v New York State Off. of Children & Family Servs., 206 AD3d 1126 [2022]). In Matter of Blue, the claimant sustained a knee injury resulting in a meniscal tear and chondromalacia patella, and both the claimant's treating physician and the carrier's consultant agreed that the claimant had a 50% SLU based solely on range of motion deficits resulting from the meniscal tear. The Board, however, found that the claimant was limited to a 10% SLU of the leg pursuant to Special Consideration #4, based on the diagnosis of chondromalacia patella. On appeal, the Third Department reversed, finding that the Board's literal interpretation of the Impairment Guidelines achieved an inequitable result insofar as a claimant with only a meniscus tear may receive an SLU award far greater than 7 1/2 to 10% based upon their range of motion deficits, while a claimant with the exact same injury and the same or greater range of motion deficits, receives a limited SLU award because of the additional diagnosis of chondromalacia patella and the application of Special Consideration #4.
Here, as in Matter of Blue, the claimant has two distinct injuries to the same extremity: a rotator cuff tear and a biceps rupture of the left arm. Dr. Kircher opined that the claimant would have a 38.5% SLU based solely on the range of motion deficits that are due to the torn rotator cuff. While the Board should determine the appropriate SLU percentage, whenever possible, in a manner that is “consistent with the plain language of the impairment guidelines” (Matter of Zuhlke v Lake George Cent. Sch. Dist., 220 AD3d 1028 [[2023]), limiting the claimant to a 33.33% SLU based on the application of Special Consideration #6 would result in the kind of inequity identified by the Third Department in Matter of Blue. Specifically, the literal interpretation of the Guidelines would unfairly result in a lower SLU based on the application of Special Consideration #6 (33.33%) than claimant would receive based on Dr. Kircher's opinion of his range of motion deficits alone (38.5%) without regard to the special consideration. As such, consistent with the Guidelines and the Court's decision in Matter of Blue, the Board Panel finds that the claimant has a 38.5% SLU, the higher of these two values.
Therefore, the Board Panel finds that the claimant has a 38.5% SLU of the left arm, which entitles the claimant to a total of 129.52 weeks of awards (120.12 weeks for the 38.5% SLU plus 9.4 weeks for the protracted healing period) at the total rate of $818.23 per week, for a total award of $105, 977.15, less prior payments.
As there is now less money moving to the claimant due to the reduction of the SLU from 48.5% to 38.5%, the Board Panel will reconsider the amount of the fee awarded by the WCLJ to the claimant's attorney ($14, 000.00).
When considering a request for an attorney fee that is made prior to January 1, 2023, the Board has discretion to 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” (12 NYCRR 300.17[f]). If a fee in excess of $1, 000 is requested, a written application (form OC-400.1) is required and must be accurately completed (12 NYCRR 300.17[d]).
In the OC-400.1 form received by the Board on September 20, 2021, the claimant's attorney requested a fee of $14, 000.00 for a total of 11.45 hours of work, noting that no fee had previously been received. The form provides a description of service and time spent for each date listed, and the form was signed by the claimant as required. The Board Panel finds that in light of the services provided and having due regard for the financial status of the claimant, a fee in the amount of $11, 000.00 should be awarded to the claimant's attorney, which is payable from the SLU award being directed herein.
ACCORDINGLY, the WCLJ reserved decision filed December 7, 2021, is MODIFIED to find that the claimant has a 38.5% SLU of the left arm, which entitles the claimant to a total of 129.52 weeks of awards (120.12 weeks for the 38.5% SLU plus 9.4 weeks for the protracted healing period) at the total rate of $818.23 per week, for a total award of $105, 977.15, less prior payments; and to reduce the amount of the fee awarded to the claimant's attorney from $14, 000.00 to $11, 000.00, which is payable from the SLU award being directed herein. The rest of the WCLJ decision remains in effect. No further action is planned at this time.
All Concur.
Clarissa Rodriguez Pamela Caggianelli Arelis Tavares