In the Matter of the Claim of SCOTT M. PARODY, Claimant,
OLD DOMINION FREIGHT LINE et al., Appellants. WORKERS' COMPENSATION BOARD, Respondent.
Calendar Date: November 16, 2017
Goldberg Segalla, LLP, Syracuse (Cory A. DeCresenza of
counsel), for appellants.
T. Schneiderman, Attorney General, New York City (Steven
Segall of counsel), for Workers' Compensation Board,
Before: McCarthy, J.P., Lynch, Devine, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
September 7, 2016, which ruled that claimant had a 55%
schedule loss of use of his right leg.
sustained a work-related injury to his right knee in December
2013 and filed a claim for workers' compensation
benefits. He was diagnosed by his treating orthopedist, Glenn
Axelrod, with a lateral meniscus tear, a medial meniscus
tear, chondromalacia of three compartments of the knee
(medial femoral condyle, lateral femoral condyle and patella)
and synovitis. He underwent knee surgery in March 2014 and
was cleared to return to work in April 2014. Claimant's
workers' compensation claim was established for an injury
to his right knee and proceedings were subsequently conducted
by a Workers' Compensation Law Judge (hereinafter WCLJ)
on the issue of permanency. In connection therewith, Axelrod
issued a report opining that claimant suffered a 25% schedule
loss of use (hereinafter SLU) of his right knee. However,
Stewart Kaufman, an orthopedic surgeon who conducted an
independent medical examination of claimant, opined that
claimant suffered a 50% SLU of his right knee. The WCLJ
credited the opinion of Kaufman over Axelrod and awarded
claimant benefits based upon a 50% SLU of his right leg. On
appeal, the Workers' Compensation Board modified the
WCLJ's decision and awarded claimant benefits based upon
a 55% SLU of his right leg. The employer and its workers'
compensation carrier (hereinafter collectively referred to as
the employer) now appeal.
employer asserts that the Board's decision is not
supported by the medical evidence or application of the New
York State Guidelines for Determining Permanent Impairment
and Loss of Wage Earning Capacity (2012) (hereinafter the
guidelines). Preliminarily, we note that both Axelrod and
Kaufman referred to the guidelines in rendering their
opinions. Axelrod indicated that, pursuant to special
consideration 9 of section 3.2 of the guidelines addressing
loss of use of the knee, claimant's medial meniscus
impairment resulted in a 10% loss of use. He further
indicated that, pursuant to special consideration 4 of the
same section, claimant's lateral meniscus impairment and
chondromalacia patella each resulted in a 7.5% loss of use
which, when combined with his medial meniscus impairment,
resulted in a total SLU of 25%. Axelrod did not find that
claimant had a limited range of motion or atrophy and did not
assign a percentage of loss due to these factors.
on the other hand, did find that claimant had a limited range
of motion and atrophy causing a flexion deficit of 0 to 105
degrees that, according to table 3.2 of the guidelines,
resulted in a 30% loss of use. He further found, applying
special consideration 4, that claimant's medial meniscus
and lateral meniscus impairments, with atrophy, resulted in a
20% loss of use. Consequently, he opined that claimant
suffered a total SLU of 50%.
rendering its decision, the Board credited Kaufman's
medical opinion that claimant had a range of motion
limitation over Axelrod's contrary opinion, which it was
clearly entitled to do (see Matter of Grugan v
Record, 84 A.D.3d 1648, 1649 ; Matter of
Cullen v City of White Plains, 45 A.D.3d 1167, 1168
). However, the Board disagreed with Kaufman's
finding that claimant's flexion deficit of 0 to 105
degrees resulted in a 30% loss of use and concluded that it
was 25% based on table 3.2 (9) . The Board further found
that Kaufman failed to make separate findings with respect to
claimant's medial meniscus impairment, lateral meniscus
impairment and chrondromalacia patella, and proceeded to
assign a 10% loss of use to each, resulting in a total SLU of
55%. The Board is free to accept or reject all or part of
medical evidence that is offered (see Matter of Scott v
Manhattan & Bronx Surface Tr. Operating Auth., 132
A.D.3d 1048, 1049 ; Matter of Ferber v New York
Dept. of Corrections, Adirondack Correctional Facility,
220 A.D.2d 915, 916 ). Factoring in the limited range
of motion identified by Kaufman with each of the three
impairments indicated by Axelrod, the Board assigned a 10%
loss of use to each category pursuant to special
considerations 4 and 9, which allow for an increased loss of
use percentage where there is both a joint defect combined
with a loss of motion or muscle atrophy. Since this
determination comports with the medical evidence and is
supported by substantial evidence, we affirm.
McCarthy, J.P., Devine, Mulvey and Aarons, JJ., concur.
that the decision is affirmed, without costs.