In the Matter of the Claim of Melody Wohlfeil, Respondent,v.Sharel Ventures, LLC, Respondent, Workers' Compensation Board, Appellant.BriefN.Y.August 29, 2018To be Submitted by: MELISSA HABBERFIELDCase No. 523523 Heui fork (Emart Appellate Itutfiton— all|trb department COPY OF WITHIN PAPER RECEIVED MAY 2 2 2017 In the Matter of the Claim Under the Workers’ Compensation Law of NYS Office of the Attorney GeneralN.Y.C. LABOR BUREAU MELODY WOHFIEL, Claimant-Appellant, - against- SHARELL VENTURES, LLC, Employer-Respondent, -and- THE WORKERS’ COMPENSATION BOARD, Respondent. BRIEF FOR EMPLOYER-RESPONDENT SHARELL VENTURES LLC DBA MCDONALDS HABBERFIELD HASSLER LLP Attorneys for Employer-Respondent Safety National Casualty Corporation on behalf of Sharel (improperly spelled Sharell) Ventures LLC dba NY McDonald's Oper WC Trust 13 East Mohawk Street, Ste 200 Buffalo, New York 14203 (716) 249-6900 Workers’ Compensation Board Case No. 70709929 lY-WttfrtfW, -to- ... & TABLE OF CONTENTS TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT 1 QUESTION PRESENTED 1 STATEMENT OF FACTS 1 ARGUMENT 5 THE BOARD PANEL DECISION SHOULD BE AFFIRMED AS IT WAS PROPERLY DETERMINED THAT CLAIMANT HAS A PERMANENT PARIAL DISABILITY WITH A 75% LOSS OF WAGE EARNING CAPACITY 5 CONCLUSION 10 i TABLE OF AUTHORITIES Page Matter of Buffalo Auto Recovery Service. 2009 NY Wrk Comp 8070390 [November 12, 2009] 6 Matter of Lonelev Jones Management Corp.. 62012 NY Wrk Comp 60704882 Matter of Maimonides Med. Ctr.. 2014 NY Wrk Comp 4087719 7 Matter of Monroe County. 62014 NY Wrk Comp 4854018 Matter of NYC Department of Juvenile Justice. 62011NY Wrk Comp 00749328 Matter of Patchoeue-Medford School Dist.. 72011NY Wrk Comp 40803044 Matter of Personal Touch. 92016 NY Wrk 846013 •>r Matter of J Scaramella Trucking, 7,82014 NY Wrk Comp 4771958 ii PRELIMINARY STATEMENT Respondent, Safety National Casualty Corporation on behalf of Sharel (improperly spelled Sharell) Ventures LLC dba NY McDonald's Oper WC Trust (hereafter "Carrier"), submits this brief in opposition to the appeal filed by Claimant, Melody Wohfiel, from a Memorandum Board Panel Decision filed October 29, 2015, which opined that Claimant had 75% loss of wage earning capacity. QUESTION PRESENTED Did the Workers' Compensation Board err as a matter of law and fact when it found claimant to have a 75% loss of wage earning capacity? No. The medical evidence and testimony in the record support a finding that claimant sustained a permanent partial disability with a 75% loss of wage earning capacity. STATEMENT OF FACTS The claimant/appellant, Melody Wohfiel, (hereafter the "claimant") filed a worker's compensation claim which has been established for injuries to the back, rib, right hip, and consequential right knee as a result of an accident on October 16, 2007. The claimant was a service food worker, who was injured when she slipped and fell on a substance on the floor while working. (R.4). Claimant has a Regents diploma from New York State with no college degree. (R.52-53). At the time of the accident, Claimant worked as a crew member/cashier at McDonald's in Farmington, NY (R.53). 1 After high school, Claimant worked at Woolworth making Christmas hats and stockings in 1984 (R.62). She then went on to work at Fairview Veterinary Hospital from 1984-1990 where she worked as a veterinarian assistant/head receptionist. (R.62). Her job duties consisted of answering phones, making appointments, doing inventory, taking care of the animals, consoling families with sick pets and even administering medication to the animals. (R.63.). Claimant also worked as the pharmacy tech there and took care of all accounting of medications and labeling. (R.64-65). She also performed computer programming for Fairview Veterinary Hospital. She learned how to use their new computer system at the main hospital and brought her skills back to Fairview and taught the rest of the staff. (R.65). Claimant started working part-time at the hospital while also working for Dr. Soltiz and Freeman doing four- handed dentistry from 1990-1995 (R.67-68). Between 1996 and 1998 she held a part time job at Burgundy Basin doing banquet service and between 1998 and 2005 she stayed home to raise her son. (R. 68-70). After she returned to the workforce, Claimant worked at an interior landscaping business called Botanical where she traveled to different commercial offices and took care of plants. (R.55, 70). Prior to working at McDonald's, she worked as a crew member at Dunkin Donuts (R.54). After leaving Dunkin Donuts, she then worked at the subject McDonald's starting in 2005. Claimant currently uses a tablet and her phone for surfing the internet. She has email but denies using it often. She is capable of driving for short periods of time. (R.70-71). Claimant also suffered from unrelated medical conditions of depression and angina (heart condition) (R.60). 2 After the hearing held on 11/10/14, the depositions of Dr. Clifford Ameduri and Dr. Guy Corkhill were directed with memoranda of law to be filed by 1/15/15. (R.35-36). Claimant underwent an Independent Medical Examination performed by Dr. Corkhill on 12/14/14. Dr. Corkhill opined that claimant had a moderate to marked partial disability and had reached maximum medical improvement if she is not offered further treatment or refuses further treatment. Dr. Corkhill further opined that claimant is a medical impairment class 4 based on Table 11.2 for surgically treated spine conditions. The doctor also made the following findings based on his examination: • "From Table S11.4 for abnormal imaging findings the claimant has a score of 16. • From Table S11.4 for EMG abnormalities the claimant has a score of 6. • From Table S11.4(a) for muscle involvement grade 3/5 equals a score of 6. • From Table S11.4(b) for sensory involvement compromised sensation equals a score of 4. • From Table S11.4 reflex changes present but diminished reflexes equals a score of 4. • From Table S11.4 for tension compression signs the claimant has a score of 4 for positive straight leg raise. • From Table S.11.6 for L3 sensory loss she has a score of 0." Dr. Corkhill then opined a total score of 40 and from Table S11.7(b) a core of 40 equals a severity ranking of "G". (R.76). Based on the subjective complaints that claimant reported to Dr. Corkhill, he noted that claimant is able to "sit for 30 minutes, stand for 20 minutes, and uses a cart at the grocery store for shopping." Claimant also reported to Dr. Corkhill that her "right leg becomes paralyzed while she is driving and has to use the left leg for the foot controls." (R.76). 3 The testimony of Dr. Clifford Ameduri, claimant's treating doctor, was conducted on 01/05/2015 (R.85). Dr. Ameduri testified that he has treated the claimant for post-operative back pain. He last examined the claimant on 8/14/14. (R. 87-88). Subjectively, Dr. Ameduri opined that claimant was still having pain post-surgery. He then opined that claimant could only perform work at less than sedentary work level however admittedly made that opinion without the benefit of a functional capacity evaluation. (R.88). Dr. Ameduri admitted he only saw the claimant on two occasions, 7/2/14 and 8/14/14 (R.91). Any statement referencing a "total disablement" was given with a caution that the doctor does not use the "old guidelines" anymore. (R.88-89). Dr. Ameduri could not say with a reasonable degree of medical certainly that claimant's bladder problems were related to the subject work injury and could not opine when the bladder problems started. (R.92). Regarding claimant's work restrictions, Dr. Ameduri opined that claimant could occasionally lift, carry, pull and push up to 10 lbs. and that she could sit, stand and walk on occasion as long as she did not sit or stand for more than 30 minutes without changing positions. He also testified that claimant could perform simple grasping and fine manipulation. (R. 93-95). Dr. Ameduri did not actually speak with the claimant about her work restrictions. (R.98). He could not recall if claimant required the use of any assistive devices such as a cane or walker. He believed she was independent regarding her self-care. Claimant did need help getting onto his exam table however he admitted that at the time he did not have an electric exam table and it was a very high exam table. Finally, he testified that claimant did not have 4 any bowel incontinence or gait deviation. (R.99-100). Dr. Ameduri found claimant to have a Class 4 Condition of lumbar spine with a severity ranking of "F". (R.49). The deposition of carrier's consulting doctor, Dr. Guy Corkhill, was then conducted on 01/15/2015. (R.102). Dr. Corkhill examined the claimant on two occasions: 08/16/13 and 12/11/2014. (R.103). The doctor reiterated his report where it stated that if claimant did not seek further treatment, that she had reached maximum medical improvement and referred to his permanency finding of Severity Ranking "G". (R.104). In a Reserved Decision dated 02/09/2015, the Honorable Judge David Lawlor held that "claimant has a permanent partial disability causally related to the injury of this file with a 75% loss of wage earning capacity." (R.ll). Claimant then appealed the Reserved Decision by filing an RB-89 dated 2/12/15 with presumably supporting papers (not included in the Record on Appeal) (R80-81). The Board Panel then issued a Decision dated 10/29/2015 affirming Judge Lawler's Decision with all three Judges concurring. (R.4-9). Claimant/Appellant's Appeal to the Third Department then ensued. ARGUMENT THE BOARD PANEL DECISION SHOULD BE AFFIRMED AS IT WAS PROPERLY DETERMINED THAT CLAIMANT HAS A PERMANENT PARIAL DISABILITY WITH A 75% LOSS OF WAGE EARNING CAPACITY. Appellant argues that Dr. Ameduri and Dr. Corkhill agree in that the claimant was found to have a permanent total disability. While Appellant is correct that the doctors are in agreement, they are actually in agreement that Claimant sustained a permanent partial disability based on the permanency rankings they opined. As discussed below, the WCL) took 5 the doctors' opinions into consideration as well as claimant's vocational factors when opining a 75% loss of wage earning capacity. Pursuant to WCL §15(3)(w), a claimant's loss of wage earning capacity "must be determined by a preponderance of the evidence in the record concerning the nature and degree of the work-related permanent physical and/or mental impairment, work restrictions, claimant's age, and any other relevant factors. For each claimant, the percentage representing the loss of wage earning capacity determines the maximum number of benefits weeks and percentage representing the 'wage earning capacity' is used to calculate the weekly rate (see Matter of Buffalo Auto Recovery Service, 2009 NY Wrk Comp 8070390 [November 12, 2009]; Matter of Longlev Jones Management Corp.. 2012 NY Wrk Comp 60704882." (R.7). A claimant's loss of wage earning capacity is an evidentiary determination based on the medical impairment and functional ability. The WCU evaluates the medical evidence and then applies the vocational factors which have been developed through lay testimony. Any determination as to loss of wage earning capacity must be consistent with the provisions of the Workers’ Compensation Law. Matter of Monroe Countv. 2014 NY Wrk Comp 4854018. There is a distinction between impairment and disability. Based on NYS case law, "impairment" is defined as a medical condition while a claimant's "disability" is a legal determination. Id. at 3. A determination as to loss of wage earning capacity requires development of the record as to the nature and degree of permanent impairment, work restrictions, age, education, language ability, and other relevant factors. Id. (see also Matter of NYC Department of Juvenile Justice. 2011NY Wrk Comp 00749328). 6 While the impairment rating may coincidentally be the same percentage as the ultimate finding of loss of wage earning capacity, the medical impairment rating is not to be used as a direct translation to loss of wage earning capacity. Matter of Patchoeue-Medford School Dist.. 2011NY Wrk Comp 40803044. The 2012 Medical Impairment Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity "enumerate the criteria and factors used in determining the severity ranking for the medical impairment for a surgically treated and non-surgically treated spine condition and pelvis conditions, with 'A' being the least severe medical impairment and '1' being the most severe medical impairment. The Board Panel has previously noted, that "[t]he severity ranking is generally predictive of the expected functional loss from the medical impairment. The 2012 Guidelines also permit consideration of an assessment of residual functional ability/loss' of the claimant. The extent of impairment is measured by considering medical evidence of impairment and medical evidence of functional loss." Matter of Maimonides Med. Ctr.. 2014 NY Wrk Comp 4087719, at 2. "Once the appropriate severity ranking is determined, the Medical Impairment Severity Crosswalk (Table 18.1) is to be applied. Table 18.1 is intended to allow for some degree of comparison between rankings of different classes and chapters. The Medical Impairment Severity Crosswalk creates a range of 0-6, (0 representing no medical impairment, 1 representing 25% medical impairment, 2 representing 33.33% medical impairment, 3 representing 50% medical impairment, 4 representing 66.66% medical impairment, 5 representing 75% medical impairment, and 6 representing total medical impairment)." Matter of J Scaramella Trucking. 2014 NY Wrk Comp 4771958, at 4-5. 7 The Board Panel in Matter of J Scaramella Trucking gives the following example: "pursuant to the Medical Impairment Severity Crosswalk table 18.1 for the lumbar spine, severity rankings of A-B, D would correspond to a mild, or 25% permanent impairment (severity class 1). Severity rankings E-F correspond to a mild to moderate, or 33.33% permanent impairment, under the Medical Impairment Severity Crosswalk (severity class 2). Similarly, severity ranking D-E correspond to a mild to moderate, or 33.33% permanent impairment..." Id. In the subject case, Dr. Ameduri (claimant's treating doctor), properly followed the 2012 Medical Impairment Guidelines and opined that claimant fell under Table 11.2 class 5 with Severity Ranking "F". Using the Severity Crosswalk discussed above, this translates to a 33 1/3% permanent medical impairment. Dr. Corkhill properly used the same guidelines and also opined that claimant fell under Table 11.2, Class 4 with a Severity Ranking "G". Using the Severity Crosswalk discussed above, this translates into a 50% permanent medical impairment. In the subject case, the WCU took into consideration the medical impairment ratings opined by the dortors as well as claimant's vocational factors. In the Reserved Decision, WCU Lawlor specifically outlined the severity rankings given by the doctors as well as claimant's vocational factors. WCU noted that "claimant is now in her late forties with a high school education and labor market experience in veterinary assisting, dental assisting, office work, interior landscaping, child care and food service." (R.ll). Based on her versatility, experiences and evaluating her testimony, the WCU opined that claimant would qualify for some forms of light or sedentary work but her continuing pain condition would likely reduce her ability to prepare for or concentrate on sedentary work." (R.ll). 8 Miter*.vAÿ&WWitiln-iii In a recent Board Panel Decision, the Board affirmed the WCU decision that found an 85% LWEC for a claimant that was 58 years old at the time of the hearing and had worked as a nursing aide for the past 18 years. Since the accident, claimant needs help dressing herself, must be driven by someone else, and cannot even cook in her own kitchen without sitting down every 10 minutes. There was no indication she could use any of her current work skills or trade school training to perform work. The claimant was found to have a permanent lumbar injury with a severity ranking of I and a permanent neck injury with a severity ranking of G. Given the claimant's age, multiple sites of injury, severity rankings, functional limitations and lack of transferable job skills, the WCU found an 85% LWEC which was confirmed by the Board Panel. Matter of Personal Touch. 2016 NY Wrk 846013, at 3. In the subject case, claimant is capable of doing some light cleaning, cooking, limited driving, using the internet, can speak, write and read English well, has transferable skills from prior work experiences such as veterinary assisting, dental assisting, office work, interior landscaping, child care and food service. Additionally, Ms. Wohlfiel's impairment rankings were found to be "F" and G". To be consistent with the decision in the Matter of Personal Touch. Ms. Wohlfiel's LWEC should not exceed the claimant's LWEC in Matter of Personal Touch as Ms. Wohlfiel's impairment rankings were less severe and her vocational factors are stronger. Claimant's AWW is $124.19. She only worked part time since having children in 1995. If claimant worked a part-time sedentary job within her restrictions for approx. 15 hours a week at the minimum wage of $8.75 (the minimum wage at the time of the appeal to the Board Panel), she would exceed her AWW. 9 As discussed above, applying the Severity Crosswalk, applicable case law, 2012 Medical Impairment Guidelines and reasoning outlined in the WCU's Reserved Decision, it is clear that the WCU took into consideration both claimant's medical impairment and vocational factors when finding a 75% loss of wage earning capacity. CONCLUSION WHEREFORE, it is respectfully submitted that the Memorandum Board Panel Decision dated October 29, 2015 be affirmed in its entirety. DATED: May 17, 2017 Buffalo, New York Respectfully submitted, q> 'a Melissa B. Habberfield, Esq. Habberfield Hassler, lip Attorneys for Respondent Safety National Casualty Corporation on behalf of Sharel (improperly spelled Sharell) Ventures LLC dba NY McDonald's Oper WC Trust 13 E. Mohawk St. Ste 200 Buffalo, New York 14203 10