In the Matter of the Claim of Melody Wohlfeil, Respondent,v.Sharel Ventures, LLC, Respondent, Workers' Compensation Board, Appellant.BriefN.Y.August 29, 2018A To BE SUBMITTED ; 'ÿ ,;w PAPER Hi::CtiVrD MAH I S ? 0 1 / MYS Office of She Attorney Genera!‘ IM.Y.C LABOR BUREAU A.iu-y 'L'-rSTATE OF NEW YORK SUPREME COURT APPELLATE DIVISION, THIRD DEPARTMENT In the Matter of Melody Wohfiel, Worker’s Compensation Claimant, Claimant-Appellant, Case 523 523 -vs- Sharell Ventures, LLC; New York State Worker’s Compensation Board, Respondents. BRIEF FOR APPELLANT Melvin Bressler, of counsel, Attorney for Appellant 58 Tobey Court Pittsford, NY 14534 (585) 586-5993 INDEX Page 2Preliminary Statement 2Questions Presented 3Nature of the Case Argument The decision of the Worker's Compensation Board is not based on substantial evidence and should be reversed. 4 -l- Preliminary Statement Claimant, Melanie Wohlfiel was injured on October 16, 2007, while employed at a MacDonald’s restaurant, in Rochester, NY (Monroe County). The restaurant was operated by Shared Ventures, LLC, the named Respondent. The injuries were quite severe, requiring several surgeries, a lengthy recovery period, and ultimately, a finding by both her treating physician and by the physician retained by Respondent-employer, that she was unable to work. Ms. Wohlfiel was found eligible for Worker’s Compensation benefits, which is not contested and is no part of this appeal. In a Reserved Decision on February 9, 2015, WCLJ David Lawlor concluded that the Claimant had a permanent partial disability, with a 75% loss of earning capacity. On Claimant’s application, a Board Panel reviewed Judge Lawlor’s decision and, in its Memorandum Decision of October 29, 2015 affirmed that decision. This appeal followed. Questions Presented Was the Decision of the Worker’s Compensation Board correct in all respects? Was the findings by the Worker’s Compensation Board Law Judge that she was partially, not permanently disabled correct in all respects? Was the Decision of the Administrative Law Judge correct in all respects? 1. 2. 3. -2- 4. Did the Worker's Compensation Board properly exercise its discretion or authority in making its findings and conclusion(s)? The Questions Presented one, two and three were implicitly answered “no” at the hearings below, and Question four was implicitly answered “yes.” Nature of the Case Claimant slipped on debris on the floor of the McDonald's Restaurant, where she worked. The Worker's Compensation Law Judge (“ALJ”), Hon. David Lawlor, ultimately found her to be permanently partially disabled, with a “G” severity according to the current (2012) Impairment Guidelines, with a 75% wage loss. Claimant sought Board review, claiming that her injuries should be classified as permanent total. The Board Panel affirmed the decision by ALJ Lawlor. Claimant now appeals, solely on the issue of the classification of her injuries. Please note that references to the Record on Appeal will be abbreviated as “R (page number).” -3- Argument The decision of the Worker's Compensation Board in not based on substantial evidence and should be reversed. Ms. Wohlfiel was injured on October 16, 2007, when she slipped on debris on the floor of the McDonald's restaurant where she worked. The accident was reported by the employer (Form C-2, R-13). She applied for, and qualified for Worker's Compensation benefits, and, as noted in the Preliminary Statement, she was found to have a permanent partial disability, with 75% wage loss (Reserved Decision of Hon. David Lawlor, ALJ, R. 11). Ms Wohlfiel was treated by Clifford Ameduri, MD, who found that she was permanently and totally disabled. (Ameduri deposition, R. 89, L. 4-10). The physician retained by the carrier, Guy Corkill, MD, also found her disability to be permanent and total. Deposition at R. 103-104). There was no other relevant medical evidence presented, and ALJ Lawlor, notwithstanding the assessment of both physicians, found her injuries to be “permanent partial” and, on Administrative appeal, the Worker's Compensation Board Panel affirmed. The Board, in its thorough and detailed decision, discussed the medical reports of both physicians, essentially rejected the findings or conclusions of the carrier's physician, Dr. Corkill, and accepted the findings and conclusions of Dr. Ameduri, the treating physician (R. 7, et seq.). In this case, the only significant difference between permanent partial and permanent total is whether Ms. Wohfiel has to be 'attached to the work force,' -4- which requires her to continue to look for work, something she had been doing all along with great difficulty. This requirement is problematic, first because Ms. Wohlfiel has difficulty driving because of the pain and discomfort. While the Board indicated that she could operate a vehicle (L5, third full paragraph), Ms. Wohlfiel's testimony explained the difficulty she had in driving at R. 71, L. 9: I can (drive) for short period of time. Driving long distances or whatever because of my right leg goes numb, Its very scarry (sic). I have been known to have to use my left foot to drive. While the Board recognized this limitation, it gave it no particular weight, or discussed its effect. (R. 5, third full paragraph). In addition, based on the two medical reports, Ms. Wohlfiel is, for all practical purposes, unemployable because of her condition. Dr. Ameduri, who is Board Certified in physical medicine and rehabilitation, with sub-board certification in patient and disability evaluation (R. 86-87) said that Ms. Wohlfiel was totally disabled and not capable of “performing any type of gainful employment” (R. 89, L.7-10). He also testified (same pg., L. 16) that she did not have a positive response to the several surgeries and implanted prosthetic devices, or to the prescribed medication. He also reported on her pain level, neurological findings, sensory and motor deficits and bladder problems (R. 88), and testified that his findings, in addition to record review, was based on his physical exam (R. 94). Dr. Ameduri concluded that Ms. Wohlfiel could neither sit or stand for longer than30 minutes without changing positions. It isn’t clear to what positions she could change other than stand after sitting or sit after standing, or -5- possibly, lying down. I would urge that this medical necessity, the direct result of her work related injuries, makes her unemployable for any job in any work place, which I would also urge is a good working definition of permanent disability. She also walks with a cane (Wohlfiel deposition, R. 58, L 2), so that would complicate a standing position. Dr. Corkill, Respondent's physician, also testified that she was unable to return to “meaningful work” and that she would be unable to return to work in the future, principally based on her level of pain (R. 105-106). The Board however held that Dr. Corkhill's evaluation was based on Ms. Wohlfiel's subjective complaints of pain and therefore cannot be credited (R. 7, first full paragraph). But this ignores Dr. Corkill's testimony that his findings concerning Wohlfiel's complaints of pain were based on the objective findings and diagnostic tests, including imaging (R. 107). This brings us to the real issue in the case, whether the Board's decision of affirmance was proper. It is fundamental that the Board is the ultimate arbiter of all contested fact issues. See, e.g., Gates v. McBride Transportation, Inc., 60 NY 2d 670, quoting from an earlier case, and also see, Matter of Mancini v. Scotia Police Dep't., 141 AD2d 930, at 931, holding that conflicts in both facts and medical opinions are decided by the Board. However, a necessary condition of the Board's findings is that the findings are based on substantial evidence, as quoted in Gates, above. In Chiaino v. Lomenzo, Secretary of State, 26 AD2d 469, a case involving the revocation of a State issued real estate license, the first department held that -6- the applicable standard on administrative review is evidence so substantial that: there must be substantial evidence adduced in support of the charges (Mtr. of Tegeler v. Dept, of State of State of New York, supra). ‘A finding is supported by the evidence only when the evidence is so substantial that from it an inference of the existence of the fact found may be drawn reasonably. A mere scintilla of evidence sufficient to justify a suspicion is not sufficient to support a finding upon which legal rights and obligations are based. (26 AD 2d at 471, internal citations omitted). To the same effect, see Francese v. Waterfront Commission of New York Harbor, 59 AD2d 535. In addition, in O'Laughlin v. Federal Reserve Bank of New York, 275 AD 876, a rather venerable case, this Court affirmed a finding of the Board in a Worker's Compensation case, that an inability to walk properly due to a partial amputation, and difficulty in “going from place to place” to find work, supported a finding of permanent total disability. The Board read Dr. Ameduri's findings and testimony as supporting a conclusion that Ms. Wohlfiel “had some limited work capacity.” The Board relied, in part, on Claimant's ability to drive and do light house work (Decision at R. 8, fourth paragraph). Ms. Wohfiel's testimony however is somewhat different. She testified that her husband and the children cleaned the house, and that she did light cleaning, such as washing and putting dishes away (R. 8, L. 18-24), and that the kitchen had to be remodeled to permit her to move around the kitchen without pain or discomfort (R. 9. L. 4-9). This is not a condition to be fund in the average work place. Her driving ability is severely limited, and causes pain, as discussed above (her testimony is at R. 71, L. 9). The fact that she knows how to operate an automobile does not equate with the physical ability to drive for any length of -7- time. The Board can accept or reject medical testimony, and decide on conflicting testimony or evidence, but ultimately, the Board's decision must be based on substantial evidence, not a mere scintilla, as described in the cases cited above. The Board, presumably within their discretion, apparently chose to disregard the testimony of both Dr. Ameduri and Dr. Corkill that Ms. Wohlfiel is not capable of gainful employment (Dr. Ameduri, R. 89, L. 7-10; Dr. Corkill, R. 105-106). The Board's reliance on their selective assessment of the evidence is therefore below the substantial evidence standard. The uncontroverted testimony of Ms. Wohfiel, coupled with the medical history of several surgeries, the physical therapy, the use of surgically implanted prosthetic devices, all resulting in minimal or no improvement, and the continuing and debilitating pain all point to an inability to live a normal live, and precludes any possibility of gainful employment. Ms. Wohlfiel is permanently disabled, and there is no substantial evidence to the contrary. Ms. Wohlfied should not be forced to seek non-existing job opportunities. The findings of the Board and of the Law Judge should be reversed and Claimant should be assessed as permanently and totally disabled. Respectfully submitted, $UIUAC Melvin Bressler, Attorney for Appellant -8-