Matter of Home Health Management, Employer
No. G0208288
New York Workers Compensation
November 8, 2020
Date
of Accident: 09/09/2009
District
Office: NYC
Carrier:
Indemnity Ins. of N America Carrier ID No.: W112502 Carrier
Case No.: C498C1584154
Claimant's Attorney: Pasternack Tilker
Panel:
Clarissa M. Rodriguez
MANDATORY
FULL BOARD REVIEW FULL BOARD MEMORANDUM OF DECISION
*This
decision also pertains to the following case(s): G0208297.
The
Full Board, at its meeting on July 21, 2020, considered the
above captioned case for Mandatory Full Board Review of the
Board Panel Memorandum of Decision filed February 25, 2020.
ISSUE
The
issue presented for Mandatory Full Board Review is the
claimant's loss of wage-earning capacity (LWEC).
The
Workers' Compensation Law Judge (WCLJ) classified the
claimant with a permanent partial disability and found that
the claimant had a 90% LWEC.
The
unanimous Board Panel modified the WCLJ decision to find that
the claimant has a 75% LWEC.
The
claimant filed an application for Full Board Review on March
26, 2020, arguing that the Board Panel erred in reducing the
LWEC from 90% to 75%. Claimant asserts that the WCLJ
correctly assessed claimant's medical impairment and
vocational factors and found a 90% LWEC based on her physical
limitations and her aggravating vocational factors.
The
carrier did not file a timely rebuttal.
Pursuant
to Workers' Compensation Law (WCL) § 23, Full Board
Review is Mandatory because the Board Panel reduced the
claimant's LWEC below the safety net threshold pursuant
to WCL § 35(3).
Upon
review, the Full Board votes to adopt the following findings
and conclusions.
FACTS
WCB
#G0208297 is established for the neck and back, and
depressive disorder stemming from a work-related accident on
November 17, 2009. The average weekly wage (AWW) has been set
at $667.69.
WCB
#G0208288 is established for an injury to the neck stemming
from a work-related accident on September 9, 2009. The AWW
has been set $667.69.
In an
IME-4 (Independent Examiner's Report of Independent
Medical Examination) for an examination on August 14, 2018,
filed in WCB #G0208297, the carrier's consultant, Dr.
Farber, noted that the claimant complained of neck and back
pain. Range of motion of the cervical spine was measured as
follows: flexion to 10 degrees (normal 50 degrees); extension
to 20 degrees (normal 60 degrees); rotation 10 degrees
bilaterally (normal 80 degrees); and side bending 10 degrees
bilaterally...
