To Be Argued By:
MICHAEL UYSAL
Time Requested: 15 Minutes
Appellate Division — Third Department Case No. _____
New York Supreme Court
APPELLATE DIVISION—THIRD DEPARTMENT
In the Matter of the Claim for Worker’s Compensation
Under the Workers’ Compensation Law made by
LIDIA BURGOS,
Claimant-Appellant,
—against—
CITYWIDE CENTRAL INSURANCE PROGRAM, C/O ESIS, INC.,
Carrier-Respondent,
—and—
WORKERS’ COMPENSATION BOARD,
Respondent.
BRIEF FOR CLAIMANT-APPELLANT
LAW OFFICE OF
MICHAEL D. UYSAL, PLLC
5030 Broadway, Suite 662
New York, New York 10034
(212) 567-5770
Attorneys for Claimant-Appellant
Workers’ Compensation Board No. 00737421
Table of Contents
Questions Presented ................................................................................................. 1
A) The Medical Evidence Denotes a Permanent Total Disability .................... 1
The Board’s affirmation of a 75% physical impairment is erroneous based on
the entirety of the medical evidence in this case as both doctors testified that
the claimant is restricted to less than sedentary work and further, that both the
WCLJ and Board credited the testimony of the claimant’s doctor, who testified
that claimant was incapable of work activity. ..................................................... 1
B) The Claimant has a 100% LWEC .................................................................. 1
The Board’s affirmation of the WCLJ’s finding of an 85% LWEC is erroneous
based on the claimant’s testimony that she only attended school until the 8th
grade in a foreign country, in a foreign language, that she has very limited
English comprehension, and has no work experience apart from factory
worker and home health aide. These positions offer no transferrable skills. ..... 1
Nature of the Case .................................................................................................... 1
Argument .................................................................................................................. 6
A) The Medical Evidence Denotes a Permanent Total Disability .................... 6
B) The Claimant has a 100% LWEC ................................................................11
Conclusion ...............................................................................................................13
Table of Authorities
Matter of Williams v Preferred Meal Sys., No. 02537, slip op. (App. Div. 3rd Mar.
26, 2015) ................................................................................................................. 7
Matter of Williams v Colgate Univ., 54 A.D.3d 1121 .............................................. 8
Matter of Vandermark v Frontier Insurance Company, 60 A.D.3d, 1171 ................ 8
Matter of Canales v Pinnacle Food Groups LLC, 117 A.D.3d 1271 ......................11
Matter of Schirizzo v Citibank NA-Banking,128 A.D.3d 1293 ..............................12
1
Questions Presented
A) The Medical Evidence Denotes a Permanent Total Disability
The Board’s affirmation of a 75% physical impairment is erroneous based on the
entirety of the medical evidence in this case as both doctors testified that the
claimant is restricted to less than sedentary work and further, that both the WCLJ
and Board credited the testimony of the claimant’s doctor, who testified that
claimant was incapable of work activity.
B) The Claimant has a 100% LWEC
The Board’s affirmation of the WCLJ’s finding of an 85% LWEC is erroneous
based on the claimant’s testimony that she only attended school until the 8th grade
in a foreign country, in a foreign language, that she has very limited English
comprehension, and has no work experience apart from factory worker and home
health aide. These positions offer no transferrable skills.
Nature of the Case
Lidia Burgos (hereinafter claimant) suffered a work related injury to her
back on June 12, 2007. The claimant filed a Workers’ Compensation claim which
was established, setting her average weekly wage at $400.00 and making various
awards of compensation for the claimant’s lost time from work. (Records, 6) After
completion of her active medical treatment, including two separate surgical
procedures on her back, the Workers’ Compensation Law Judge (hereinafter
WCLJ) directed depositions of the claimant’s doctor, Dr. Henoch, and the carrier’s
IME, Dr. Sotudeh, on the issue of permanency. (R, 81) These depositions were
completed and summarized infra.
2
Dr. Henoch was deposed on September 5, 2014 and testified that he has been
treating the claimant for several years following her accident on June 12, 2007. (R,
113-139) He testified that he performed a permanency evaluation on May 7, 2014
and based on his findings, he produced a C-4.3 report on the issue of permanent
physical impairment. (R, 117- 123)
Dr. Henoch testified that during his physical examination of the claimant he
noted weakness in both legs which caused her to have difficulty standing and
walking and that the claimant required a cane for ambulation. (R, 118-121) He
found that the claimant had marked spasm about the lumbar musculature and 1.5
centimeters of atrophy about the right leg when compared to the left leg. (R, 118)
He also noted diminished reflexes and loss of sensation about the right leg when
compared to the left leg. (R, 118) There was a positive straight leg raise in the
moderate to marked range and a loss of motor strength in the right leg. (R, 118)
Dr. Henoch noted the claimant’s treatment history which included two
separate surgical procedures of the lumbar spine, the more recent being on
February 16, 2012. (R, 119) That procedure involved having a rod and screw
placed into the claimant’s back as well as a fusion of the L4 and L5 vertebrae in
the lumbar spine. (R, 119)
3
Dr. Henoch further testified that the severe findings about the right leg were
due to the lumbar neuropathy affecting the nerves that extend into the right leg. (R,
120-121) Due to the compromised right leg, the claimant was required to use a
cane as she was a fall risk and could only walk as much as half a block. (R, 121-
122) The doctor further restricted the claimant’s ability to sit on a regular basis to
no more than 20-30 minutes in a single instance. (R, 122)
Dr. Henoch testified that he referenced the 2012 Permanency Guidelines
(hereinafter “Guidelines”) when he assigned a severity ranking of “J”, the highest
ranking possible for a lumbar injury. (R, 122-123) Based upon all of his findings,
he found a raw score of 84 points which justified the “J” ranking. (R, 123) The
doctor also performed a Functional Capacity Evaluation (hereinafter FCE) which
revealed that the claimant could not perform the basic requirements of sedentary
work and that her disability restricted her to less than sedentary work, the lowest
level of function permissible on the C-4.3 report. (R, 123) Dr. Henoch further
elaborated that based on the totality of the clinical findings and physical
restrictions the claimant was incapable of work activities and had a permanent total
disability. (R, 123)
The carrier’s IME, Dr. Sotudeh, was deposed on August 8, 2014. (R, 87-
112) He testified that he performed a single evaluation of the claimant on May 21,
2014, after which he diagnosed the claimant as being status post spinal fusion and
4
spinal disc syndrome. (R, 90-93) The doctor concluded that the claimant had a
permanent marked disability with the severity ranking of “F” based on the
Guidelines. (R, 97)
On cross-examination, the doctor conceded that the claimant used a cane for
ambulation and a back brace for support. (R, 98) The doctor testified that during
the exam, he found a positive straight leg raise test (an indication of nerve
damage), diminished range of motion, and loss of muscle strength in both legs. (R,
98-101) The doctor testified that the claimant was suffering from involuntary
tremors of both legs as the result of neurological disorders in the back. (R, 101-
102)
Dr. Sotudeh testified that he performed an FCE which revealed that the
claimant could only sit for about two hours in an eight hour workday and could
only stand and walk for about an hour each. (R, 102-105) He conceded that the
claimant did not meet the requirements to be considered able to perform sedentary
work as per the Guidelines.
At the hearing before the WCLJ on September 10, 2014, the claimant
testified on the issue of Loss of Wage Earning Capacity (hereinafter LWEC). The
claimant testified that she was 56 years old and she was born in the Dominican
Republic where she only attended school up to the 8th grade. (R, 146) She testified
5
that she had no other formal education but did complete a course to be certified as
a home health aide. (R, 58) Besides working as a home health aide, the claimant
worked in a factory where she performed physical tasks such as sewing and
garment assembly. (R, 146-149) Claimant further testified that she has very limited
English skills and no computer skills. (R, 147-149)
At the completion of the testimony, the claimant argued that both doctors
testified that the claimant’s physical impairment restricted her to less than
sedentary work capacity which would warrant a finding that the claimant was
permanently, totally, disabled.
Based on the medical testimony, the WCLJ found that the claimant had a
permanent disability with a severity ranking of “J” and found that claimant had a
less than sedentary work capacity. (R, 158-159) This finding was based entirely on
the testimony of Dr. Henoch, whose testimony was credited by the WCLJ. (R, 159)
The WCLJ then inexplicably concluded that the claimant had a 75% physical
impairment. (R, 159)
The WCLJ then evaluated the vocational factors and concluded that the
vocational limitations entitled the claimant to an overall LWEC finding of 85%.
(R, 159) The claimant appealed this finding as the WCLJ’s physical impairment
finding of 75% was incongruous with the medical evidence and further, that the
6
vocational restrictions were more severe than that found by the WCLJ. (R, 161-
168)
The Board Panel issued a decision wherein the Board accepted the findings
that claimant had a severity ranking of “J” and that she was limited to less than
sedentary work. (R, 10) The Board then affirmed the WCLJ’s finding of a 75%
physical impairment and an 85% LWEC. (R, 10) The claimant applied for Full
Board Review as well as pursuing this application for review by the Third
Department.
Recently, the Full Board denied review of the Board Panel decision.
Argument
A) The Medical Evidence Denotes a Permanent Total Disability
Both the WCLJ and the Board Panel credited Dr. Henoch’s testimony in
regards to the claimant’s severity ranking and functional restrictions. Dr. Henoch
found a severity ranking of “J”, the highest ranking available under the Guidelines
and restricted the claimant to less than sedentary work, the lowest level of function
under the Guidelines.
However, Dr. Henoch’s FCE and testimony went further, revealing that the
claimant has severe limitations in regards to her physical capabilities. She cannot
7
sit or walk for any extended periods of time; the doctor limited her to sitting no
more than 20-30 minutes at a time. Further, the claimant cannot lift or carry more
than a couple pounds on occasion. The doctor felt that the claimant could not travel
to and from work and had extreme difficulties with her own activities of daily
living. In total, Dr. Henoch was of the opinion that the claimant could not perform
any gainful work activity and thus had a permanent total disability.
The carrier’s IME testified similarly as to the claimant’s physical
restrictions. Although he found an “F” severity ranking, he noted marked loss of
range of motion in the lumbar spine and diminished strength in both legs. He noted
tremors in both legs due to neurological damage. In his FCE he noted that the
claimant could only sit a total of two hours in an eight hour day and that she could
only stand or walk for an hour each. The doctor conceded that she based on her
physical restrictions she would be incapable of performing sedentary work, thereby
agreeing that the claimant was functioning at the lowest level possible.
Despite both doctors testifying that the claimant could not perform sedentary
work and the acceptance of Dr. Henoch’s testimony that the claimant had a
severity ranking of “J”, the WCLJ only found a 75% permanent physical
impairment, a finding that is associated with a marked partial disability.
This Court, in Matter of Williams v Preferred Meal Sys., No. 02537, slip op.
(App. Div. 3rd Mar. 26, 2015), stated that, “a permanent total disability is
8
established where the medical proof shows that a claimant is totally disabled and
unable to engage in any gainful employment.” (internal quotations omitted)
(citation omitted) In this case, both the WCLJ and the Board credited Dr. Henoch’s
testimony, which included the opinion that the claimant is incapable of work
activities and has a permanent total disability. The doctor is clearly providing
“medical proof” that the claimant is permanently totally disabled, yet the WCLJ
and the Board found a 75% permanent physical impairment. While this Court,
“accords great deference to the Board’s resolution of issues concerning conflicting
medical evidence and witness credibility,” (Matter of Williams v Colgate Univ., 54
A.D.3d 1121, 1123) the medical evidence in this case clearly denotes a permanent
total disability. Furthermore, the carrier’s IME conceded a similar opinion during
his deposition. He testified that the claimant has extreme physical restrictions and
does not even qualify for sedentary work. In this instance, the Board is not
resolving a conflict of opinions but rather asserting their own opinion which is
contrary to the credible medical evidence.
Furthermore, in Matter of Vandermark v Frontier Insurance Company, 60
A.D.3d, 1171, this Court held that a finding of permanent total disability by the
Board was appropriate when the claimant’s doctor testified that the claimant would
be unable to engage in gainful employment due to her condition. In this case, Dr.
Henoch has provided clear, unambiguous testimony that the claimant is totally
9
disabled. The parallels between this case and Vandermark run deeper. In both
cases, although opposing medical reports noted a permanent partial disability, both
IMEs conceded during testimony that the claimant would not be able to return to
work. Id, at 1172. Here, while Dr. Satoudeh’s report noted a permanent marked
disability, he likewise conceded that the claimant could not even do sedentary
work. Based on the similarities between these two cases, this Court should find that
the Board did not properly consider the medical evidence presented to them and
that the claimant should be found to have a permanent total disability.
Moreover, pursuant to the issuance of the 2012 Medical Permanency
Guidelines, which replaced the 1996 Medical Guidelines for all cases involving
permanent, non-schedulable disabilities, the Board created the new C-4.3 form.
This form requires a physician to ascribe a severity ranking and complete a
functional capacity evaluation to determine the level of work that the injured
claimant can perform.
The functional levels created in the 2012 Guidelines; heavy work, medium
work, light work, sedentary work, and less than sedentary work; replace the
disability levels of the 1996 Guidelines; total, marked, moderate, mild, and no
disability. A comparison of the 2012 functional capacity levels with the 1996
disability levels reveals that the capacity to perform heavy work corresponds to no
disability; medium work to a mild disability; light work to a moderate disability;
10
sedentary work to a marked disability; and less than sedentary work to a total
disability.
These functional capacity levels were taken directly from the Federal Social
Security Grid Rules which establish the exact same levels of functional capacity.
Under the Social Security Law, a claimant who is found to have the functional
capacity to perform less than sedentary work is deemed totally disabled and
eligible for Social Security benefits regardless of any age, education or experience
limitations or qualifications.
As the Social Security Grid Rules were the foundation for the 2012
Permanency Guidelines, a finding of a less than sedentary work capacity should
likewise compel a finding that the claimant is permanently totally disabled.
Simply speaking, if a claimant cannot perform a sedentary job, then she is
incapable of performing any work at all thus compelling a finding of permanent
total disability.
Finally, it is undisputed that under WCL Section 15(1), a claimant may be
classified permanently totally disabled as a result of her injuries. If the most
severely rated lumbar injury coupled with the most severely limited functional
capacity, does not warrant a finding of permanent total disability, then in
promulgating the new C-4.3 form, the Board will have essentially eliminated
11
consideration of a permanent total disability. Clearly, the Board does not have the
regulatory authority to nullify parts of the WCL Statute.
As both the Law Judge and the Board Panel agreed that the claimant had a
less than sedentary functional capacity, a finding of permanent total disability
would be the logical conclusion. The finding of a 75% physical impairment, which
is the rate of compensation benefits accorded to a marked disability, is simply
incongruous with a less than sedentary work capacity.
B) The Claimant has a 100% LWEC
Even if this Court does not find that the claimant has a permanent total
disability, the Board was erroneous in finding an 85% LWEC. In considering a
claimant’s LWEC, this Court notes that, “the Board considers not only the nature
and degree of injury, but also work restrictions, the claimant’s age, and any other
relevant factors, with the claimant’s wage earning capacity as its inverse.” (Matter
of Canales v Pinnacle Food Groups LLC, 117 A.D.3d 1271, at 1273) (internal
quotations omitted) (citations omitted) Here, the Board failed to properly consider
the combination of this claimant’s severe physical restrictions with her lack of
experience, lack of education, lack of English language skills, and other relevant
factors.
12
The claimant testified at the hearing held on September 10, 2014 as to her
vocational limitations, stating that she was then 56 years old, had only an 8th grade
education from the Dominican Republic, had no other advance schooling besides a
certification course to become a home health aide, had not done any work other
than physical labor in a factory and as a home health aide, and had very limited
ability to read, write, or speak English. This combination of limiting factors should
have produced a much higher LWEC finding than that found by the Board Panel.
Indeed, this Court in the Matter of Schirizzo v Citibank NA-Banking,128
A.D.3d 1293, found a 99% LWEC due to a combination of the claimant’s age,
high school education, limited work experience as a bank teller only, and 75%
physical impairment. In Schirizzo, the claimant had a high school education, was
fluent in English, and had administrative skills from working as a bank teller.
In the case at bar, the claimant has less education, work experience limited to
physically demanding jobs with no transferrable skills, language limitations, and a
high level of physical impairment. If this Court found that the claimant in
Schirizzo is entitled to a LWEC of 99%, this claimant with even greater
restrictions, both physical and vocational, should be entitled to a LWEC of 100%.
13
Conclusion
The Board erred in finding that this claimant only had a 75% permanent
physical impairment as it does not comport with the medical evidence that has
been elicited. It is clear through Dr. Henoch’s testimony, which has been credited
by both the WCLJ and the Board Panel that the claimant is not capable of
performing any sort of gainful work activity and is considered permanently totally
disabled. This testimony should have led the Board to a finding of permanent total
disability. The fact that the carrier’s IME agreed with the claimant’s doctor as to
the claimant’s physical restrictions and inability to perform even minimal
sedentary work should further solidify a finding of a permanent total disability.
Furthermore, a finding of a less than sedentary work capacity is akin to a finding of
permanent total disability.
Alternatively, when taking into consideration the claimant’s physical
restrictions and myriad vocational limitations, an LWEC finding of 85% is also
erroneous. This Court has affirmed an LWEC finding of 99% for a claimant with
similar physical restrictions but with lesser vocational limitations. It is only
reasonable that when looking at the totality of this claimant’s restrictions, an
LWEC finding of 100% is appropriate.
As such, we ask that the WCLJ’s decision of September 15, 2014 and the
Board’s affirmation of that decision on August 6, 2015 be rescinded. We ask that a
finding be made that the claimant is permanently, totally, disabled, or alternatively,
that she has suffered a 100% loss of wage earning capacity. We then ask that the
claim be remanded to the Board for implementation of proper awards and
attorney's fees in accordance with such a decision.
July 28, 2016
Michael . ysal, Esq.
Atto y for the Claimant
Appellant
5030 Broadway, Suite 662
New York, NY 10034
(212)-567-5770
l4
Respectfullysubmitt
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