In re Irish Propane Corp., 080919 NYWC, G1164477

Case DateAugust 09, 2019
CourtNew York
Matter of Irish Propane Corporation, Employer
No. G1164477
New York Workers Compensation
August 9, 2019
          Date of Accident: 05/08/2015          Issues: Classification: evidence loss of wage earning capacity; attorney fees          District Office: Buffalo          Carrier: HDI Global Insurance Company, Carrier ID No.: W102503, Carrier Case No.: EFDW-3992           Claimant's Attorney: Dolce Panepinto           Panel: Clarissa M. Rodriguez           MANDATORY FULL BOARD REVIEW FULL BOARD MEMORANDUM OF DECISION          The Full Board, at its meeting on July 16, 2019, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed October 15, 2018.          ISSUES          The issues presented for Mandatory Full Board Review are:
1. claimant's loss of wage earning capacity (LWEC (loss of wage earning capacity)); and
2. the appropriate fee payable to claimant's current and former attorneys.
         The Workers' Compensation Law Judge (WCLJ (Workers' Compensation Law Judge)) found that claimant had an 83.3% LWEC and awarded a fee of $1,000.00 payable to claimant's current attorneys and a $6,725.00 "combined fee" to be split between claimant's current and former attorneys.          The unanimous Board Panel modified the WCLJ decision to find that the claimant has a 60% LWEC and to reduce the total attorneys' fees awarded to $1,000.00.          The claimant filed an application for Full Board Review on November 14, 2018, arguing that the Board Panel erred in reducing the LWEC from 83.3% to 60% and requesting that the matter be returned to the trial calendar to address the outstanding attorney fee issues.          The carrier filed a rebuttal on December 14, 2018, arguing that the Board Panel appropriately found the claimant has a 60% LWEC based upon the mitigating factors in this case, including his age, education, and pursuit of further education.          Pursuant to Workers' Compensation Law (WCL (Workers' Compensation Law)) § 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          This case is established for a work-related injury to the claimant's low back resulting from an accident that occurred on May 8, 2015. The average weekly wage was set as $835.64. On August 24, 2015, the Board received a notice of retainer indicating that claimant was represented by the firm of Losi & Gangi.          On March 24, 2016, claimant underwent a left L5-S1 microdiscectomy to address a disc herniation and radiculopathy. The report of a post-surgical MRI of claimant's lumber spine taken on February 14, 2017, indicated the following findings:
Postoperative changes at the L5-S1 with a prior left-sided laminectomy and postoperative enhancement of the intervertebral disc and associated disc space narrowing, disc desiccation and concentric bulging of the disc without evidence of recurrent disc herniation at this level and no other sites of lumbar disc herniation or conus or cauda equina compression.
         The claimant was examined by the carrier's consultant, Dr. Coseo, on February 16, 2017. Dr. Coseo found that claimant is capable of performing sedentary to light work part-time. Dr. Coseo found that claimant should be allowed to change position as needed, mostly sitting, but can walk and stand in office type setting.          In an addendum dated March 23, 2017, Dr. Coseo stated that "[u]sing 2012 New York State permanent impairment guidelines, per table 11.2, surgically related spine conditions: Class IV medically documented injury related surgical intervention, residual symptoms which would include: post-surgical electrodiagnostic findings and reflex changes. This would provide 6 points under table 11.4 for EMG abnormalities, 6 points for reflex changes for a total of 12 points. Under table S. 11.7.b, points for lumbar radiculopathy this would correspond to Severity Ranking E for a permanency finding of Class 4E."          In a C-4.3 (Doctor's Report of MMI/Permanent Impairment) dated October 4, 2017, Dr. Matteliano diagnosed intervertebral disc displacement, lumbar region. Dr. Matteliano stated that the "MRI showed central disc herniation." Dr. Matteliano found that the claimant had reached maximum medical improvement and has a permanent impairment of Class 5, Severity I to the lumbar spine. He indicated that the claimant is capable of performing less...

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