In re Right at Home, 110820 NYWC, G1077851

• Case Date: November 08, 2020
• Court: New York

Matter of Right at Home, Employer No. G1077851 New York Workers Compensation November 8, 2020           Date of Accident: 12/03/2014          District Office: Hauppauge          Carrier: Phoenix Insurance Company, Carrier ID No.: W177000, Carrier Case No.: E2L1118           Claimant's Attorney: Polsky Shouldice           Panel: Clarissa M. Rodriguez          MANDATORY FULL BOARD REVIEW FULL BOARD MEMORANDUM OF DECISION          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 12, 2020.          ISSUES          The issues presented for Mandatory Full Board Review are:

1. the claimant's loss of wage-earning capacity (LWEC); and

2. whether the claimant produced sufficient evidence of attachment to the labor market.

         The Workers' Compensation Law Judge (WCLJ) found that claimant had a marked permanent partial disability; found that the claimant has an 80% LWEC; and found that the claimant was attached to the labor market, which entitled her to continuing awards.          The unanimous Board Panel modified the WCLJ decision to find that the claimant has a 40% LWEC; rescinded the finding that claimant had a "marked" permanent partial disability; and concluded that the claimant is not attached to the labor market and is therefore not entitled to continuing benefits.          The claimant filed an application for Full Board Review on March 9, 2020, arguing that the Board Panel erred in reducing the LWEC from 80% to 40% and rescinding the finding of a marked permanent partial disability. Claimant further contends that the record supports a finding that she was attached to the labor market.          The carrier filed a rebuttal on April 7, 2020, requesting that the Full Board adopt the opinion of the Board Panel.          Pursuant to Workers' Compensation Law (WCL) § 23, Full Board Review is Mandatory because the Board Panel reduced the claimant's LWEC capacity 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 claim is established for the left foot, left ankle, right knee, and a consequential back injury stemming from a work-related accident on December 3, 2014. The average weekly wage (AWW) was set at $206.65.          In an IME-4 (Independent Examiner's Report of Independent Medical Examination) for an examination on August 29, 2018, the carrier's consultant, Dr. Kelman, noted that the claimant reported a history of falling down the stairs at her client's house and injuring her lower back, right knee, and left ankle. Upon examination, Dr. Kelman measured range of motion of the lumbar spine as follows: flexion to 60/60 degrees; extension to 10/25 degrees; right and left lateral bending to 25/25 degrees. There was no paraspinal spasm and no atrophy of the intrinsic muscles. There was minimal-to-moderate bilateral paraspinal tenderness upon palpation. The doctor measured range of motion of the right knee as follows: flexion to 120/150 degrees; extension to 0/0 degrees. There was no tenderness to palpation, no effusion, and no atrophy of the quadriceps. Range of motion of the left ankle/foot was normal. Dr. Kelman opined that the claimant had a 35% schedule loss of use (SLU) of the right knee, a 0% SLU of the left ankle/ foot, and a lumbar spine condition of a "B" severity ranking. With respect to functional capacity, Dr. Kelman found that the claimant could perform light work and noted the following restrictions: no lifting, carrying, pushing, or pulling more than 15 pounds occasionally; no prolonged standing or excessive walking; and no climbing, bending, kneeling, squatting, stooping or crawling.          In a Notice of Decision filed on April 2, 2019, the WCLJ precluded the claimant from producing a permanency report and directed the parties to submit the deposition transcript of Dr. Kelman by May 28, 2019, for further adjudication.          Dr. Kelman was deposed on May 9, 2019, and testified consistent with his permanency report. Dr. Kelman testified that the claimant underwent multiple surgeries to the back, and that the diagnosis of failed back syndrome could be applicable in her case.          At a hearing on June 11, 2019, the claimant testified that she was working as a geriatric aid in December of 2014. Her job duties included helping with food shopping, cooking meals, laying...