LAW OFFICES OF MICHAEL D. UYSAL, PLLC
July 12, 2017
Mr. John P. Asiello
Chief Clerk and Legal Counsel
to the Court
State of New York Court of Appeals
Clerk's Office
20 Eagle Street
Albany, NY 12207-1095
Re: Matter of Burgos v. Citywide Central Insurance
APL-2017- 0074
May it please the Court:
Please accept this letter as Plaintiff-Appellant's comments and arguments on
this appeal, being reviewed pursuant to §500.11 of this Court's rules, from the
Order of the Appellate Division, Third Department, entered on March 30, 2017,
which affirmed the decision of the Workers Compensation Board. As there were
two Justices dissenting, claimant filed an appeal to this Court on April 21, 2017.
Lidia Burgos (hereinafter claimant) suffered a work-related injury to her
back on June 12, 2007. After completion of her active medical treatment which
included 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.
Based upon 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. The WCLJ then inexplicably concluded that the
claimant had a 75% physical impairment.
The WCLJ then evaluated the vocational factors and concluded that the
vocational limitations entitled the claimant to an overall loss of wage earning
capacity (hereinafter LWEC ) of 85%. The claimant appealed this finding as the
WCLJ’s physical impairment finding of 75% was incongruous with the medical
evidence and that the vocational restrictions were more severe than that found by
the WCLJ.
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. The Board then affirmed the WCLJ’s finding of a 75% physical
impairment and an 85% LWEC.
Both the WCLJ and the Board Panel explicitly credited the findings and
conclusions of the claimant’s treating physician, Dr. Henoch. Indeed, the WCLJ
stated that he found that Dr. Henoch was more credible and persuasive than the
carrier’s IME. (See EC-23 dated 9/15/14 - Record at page 159). Likewise, the
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Board Panel decision found that Dr. Henoch provided credible medical evidence
in correlation with the Board s Impairment Guidelines . (See EBRB dated 8/6/15 -
Record at page 9).
However, Dr. Henoch’s credible testimony went beyond providing an
impairment rating and a functional capacity evaluation (hereinafter “ FCE ). Dr.
Henoch testified that the claimant cannot sit or walk for any extended periods of
time; limiting her to sitting no more than 20-30 minutes at a time. Dr. Henoch also
noted that the claimant cannot lift or carry more than a couple of pounds on
occasion. The doctor felt that the claimant could not travel to and from work and
had extreme difficulties with her 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.
Nevertheless, both the WCLJ and the Board Panel ignored that aspect of Dr.
Henoch’s testimony instead focusing only on the impairment rating and the FCE to
determine her overall level of disability. (By contrast, the majority opinion of the
Third Department concluded that the FCE should only be considered when
determining the durational benefits that a permanently partially disabled claimant
can receive, which is simply inconsistent with both the WCLJ and the Board Panel
decisions.)
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In Matter of Williams v Preferred Meal Svs.. 126 A.D.3d 1259, 3 N.Y.S.3d
658 (3rd Dept. 2015), the Court stated that, a permanent total disability is
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.
Furthermore, in Matter of Vandermark v Frontier Ins. Co., 60 A.D.3d 1171,
874 N.Y.S.2d 630 (3rd Dept. 2009), the 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 disabled.
Moreover, pursuant to the 2012 Medical Permanency Guidelines (hereinafter
“ 2012 Guidelines ), which replaced the 1996 Medical Guidelines for all cases
involving permanent, non-schedulable disabilities, the Board created the new C-4.3
form which requires a physician to ascribe a severity ranking and complete an FCE
to determine the level of work that the injured claimant can perform. The
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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; 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
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 § 15(1), a claimant may be
classified permanently totally disabled as a result of her injuries. If the most
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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
consideration of a permanent total disability. Clearly, the Board does not have the
regulatory authority to nullify parts of the WCL Statute.
In the decision from the Court below, the majority affirmed the findings of
the WCLJ and the Board Panel. The majority opined that the finding of claimant s
exertional ability is a factor to be considered by the Board in determining the
claimant’s loss of wage earning capacity , which is then used to “ establish the
duration of benefits only. Matter of Burgos v. Citywide Cent. Ins. Program, 148
A.D.3d 1493 (3rd Dept. 2017). The majority concluded that “ a finding that a
claimant has an exertional ability of performing less than sedentary work, ..., is not
dispositive in the context of the establishing the claimant’s overall disability . Id-
While the majority opinion of the Third Department concludes that the FCE
evaluation should only be considered for the durational benefits, that conclusion is
inconsistent with the 2012 Guidelines, as well as the decisions of both the WCLJ
and the Board Panel. As stated above, the 2012 Guidelines created the impairment
ratings and functional capacity evaluations to replace the disability ratings from the
1996 Medical Guidelines. As such, both the impairment rating and the FCE must
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be considered in conjunction when determining the claimant s overall level of
disability.
By contrast, the vocational considerations enumerated in the 2012
Guidelines, as well as the form VDF-1, were expressly created for the purposes of
determining the overall LWEC by which the duration of permanent disability
benefits could be established.
Thus, the rate of compensation to be paid during the duration of the
permanent partial disability is determined by the degree of disability, which is a
function of the impairment rating and the FCE; whereas the length of the
permanent disability benefits arises from the LWEC finding, which is the degree of
disability plus the vocational factors. As such, the majority’s opinion that the FCE
is not dispositive during the calculation of the claimant’s level of disability is
unfounded.
The dissenting opinion in the Third Department concluded that the claimant
should be found to have a permanent total disability. The dissent noted that to
properly gauge whether someone is able to engage in any gainful employment, the
guidelines necessitate consideration of the nature of the injury and the resulting
impact on the claimant’s actual ability to function . See Burgos (dissenting
opinion). Further, “ where, as here, the Board has accepted the medical testimony
assigning the most severe rating to the claimant’s lumbar injury and determined
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that she is unable to perform even sedentary work, a finding of a permanent total
disability is warranted . Id.
Thus, the dissent correctly states that the FCE is integral in determining the
claimant s overall level of disability. It is a function of both the physical
impairment and resulting impact on the functional ability of the claimant to
perform work activity.
Finally, and perhaps most compelling, the dissent notes that if a claimant
who has been found to function at a less than sedentary capacity, is not classified
as a permanently totally disabled, then one must confront the question of what
gainful employment claimant might possibly be able to perform- the record
identifies no such employment and, to be direct, nothing comes to mind . Id.
There is nothing in the record to establish that the claimant can perform any
gainful employment. Furthermore, it is simply impossible to imagine a job
opportunity that a claimant who has a less than sedentary functional capacity can
perform. Indeed, the standard which has been established by the Social Security
Administration is that there are no jobs in the national economy that can be
performed by a claimant functioning at a less than sedentary capacity.
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CONCLUSION
It is respectfully submitted that a claimant who is found to have a less
than sedentary work capacity is permanently totally disabled. The medical
testimony clearly shows that the claimant is incapable of gainful employment.
We ask that the WCLJ decision dated September 15, 2014, affirmed by the
Board on August 6, 2015, affirmed by the Third Department on March 30, 2017,
be rescinded. We ask that a finding be entered that the claimant is permanently
totally disabled. 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.
Respectfully submitted,
MichaelIX sSlTEsq.
AtJpfffSyfor the Claimant/
Appellant
5030 Broadway, Suite 662
New York, NY 10034
(212)-567-5770
July 12, 2017
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