Marcellino v. National Grid

213 A.D.3d 1094

184 N.Y.S.3d 207

In the Matter of the Claim of Joseph MARCELLINO, Appellant,

v.NATIONAL GRID et al., Respondents,Workers’ Compensation Board, Respondent.

534614

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 18, 2023

Decided and Entered: February 16, 2023

Law Office of Heather N. Kaplan, PC, Port Jefferson Station (Tiana C. Rooney of counsel), for appellant.

Foley, Smit, O'Boyle & Weisman, Hauppauge (Jennifer K. Arcarola of counsel), for National Grid and another, respondents.

Before: Egan Jr., J.P., Lynch, Aarons, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P. Appeal from a decision of the Workers’ Compensation Board, filed June 21, 2021, which ruled, among other things, that claimant did not sustain a permanent injury to his left elbow and was not entitled to a schedule loss of use award for his left elbow.

Claimant, a millwright mechanic, has an established claim for injuries to his back, neck, left thumb, left elbow and left hand (carpal tunnel syndrome ) as a result of an accident on April 8, 2015. In 2016, claimant underwent surgery including for left wrist carpal tunnel syndrome release, left elbow ulnar nerve release and left thumb trigger finger release. In 2017, Dimitro Christoforou, claimant's treating orthopedic surgeon since the accident, testified, based upon an April 2017 permanency examination, that claimant had a 30% schedule loss of use (hereinafter SLU) of his left elbow, 25% SLU of his left wrist and 30% SLU of his left thumb. He was classified as having a permanent partial disability and found to be entitled to continuing wage loss benefits but, since he was working at pre-injury wages, no benefits were awarded.

In August 2020, claimant was examined by Peter Spohn, an orthopedic surgeon retained by the employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier), who reviewed claimant's medical records and, finding no range of motion deficits, opined that he had a 0% SLU of his left hand, left wrist and left thumb. Christoforou, who last examined claimant for this accident in April 2017, thereafter testified that he stood by his 2017 permanency and SLU findings. Spohn was deposed and testified, consistent with his 2020 report, that claimant had no SLU of his left hand, left wrist or left thumb based upon normal range of motion findings during his August 2020 examination of claimant. Spohn further opined that claimant was entitled to a 15% SLU for his left hand carpal tunnel syndrome based upon the guidelines (see New York Workers’ Compensation Guidelines for Determining Impairment § 3.5 at 25; § 10.3 at 56 [2018]). Spohn did not evaluate claimant's left elbow. A Workers’ Compensation Law Judge (hereinafter WCLJ) found Spohn's medical opinion to be more credible and determined that claimant had a 15% SLU of his left wrist but no permanency to his left elbow or left thumb. On claimant's administrative appeal, the Workers’ Compensation Board affirmed. Claimant appeals.

Claimant argues that the Board erred in finding that he had no permanent disability to his left elbow. "SLU awards are made to compensate for the loss of earning power or capacity that is presumed to result, as a matter of law, from permanent impairments to statutorily-enumerated body members" ( Matter of Kromer v. UPS Supply Chain Solutions, 206 A.D.3d 1413, 1414, 172 N.Y.S.3d 142 [3d Dept. 2022] [internal quotation marks and citations omitted]; see Workers’ Compensation Law § 15[3][a]-[v] ; Matter of Fuller v. NYC Tr. Auth., 202 A.D.3d 1189, 1190, 163 N.Y.S.3d 298 [3d Dept. 2022], lv denied 39 N.Y.3d 903, 2022 WL 16984528 [2022] ). "[W]hether a claimant is entitled to an SLU award and, if so, the resulting percentage are factual questions for the Board to resolve and, thus, the Board's determination will be upheld provided that it is supported by substantial evidence" ( Matter of Davenport v. District Attorney of Richmond County, 205 A.D.3d 1293, 1294, 169 N.Y.S.3d 722 [3d Dept. 2022] [internal quotation marks and citations omitted]; see Matter of Harmon v. Office of Children & Family Servs., 206 A.D.3d 1214, 1215, 171 N.Y.S.3d 199 [3d Dept. 2022] ). "The Board is vested with the discretion to resolve conflicting medical opinions" ( Matter of Garland v. New York City Dept. of Corr., 204 A.D.3d 1198, 1199, 167 N.Y.S.3d 216 [3d Dept. 2022] [internal quotation marks, brackets and citations omitted]).

Claimant's challenge to the Board's finding of no SLU of his left elbow is based upon the erroneous supposition that, because he offered the only medical opinion on that issue from Christoforou, his treating orthopedist, the Board was required to credit it. To the contrary, "this Court consistently has held that though the Board may not fashion its own expert medical opinions, it may reject medical evidence as incredible or...