Tobin v. Finger Lakes DDSO, 525350

• Decision Date: 14 June 2018
• Docket Number: 525350
• Parties: In the Matter of the Claim of Kristi M. TOBIN, Appellant, v. FINGER LAKES DDSO et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 1286

78 N.Y.S.3d 503

In the Matter of the Claim of Kristi M. TOBIN, Appellant,

v. FINGER LAKES DDSO et al., Respondents.Workers' Compensation Board, Respondent.

525350

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

Calendar Date: April 30, 2018

Decided and Entered: June 14, 2018

Bronk & Somers, PC, Rochester (Daniel A. Bronk of counsel), for appellant.

Hamberger & Weiss, Rochester (Stephen P. Wyder Jr. of counsel), for Finger Lakes DDSO and another, respondents.

Before: McCarthy, J.P., Lynch, Devine, Clark and Pritzker, JJ.

MEMORANDUM AND ORDER

Clark, J.

Appeal from a decision of the Workers' Compensation Board, filed October 5, 2016, which, among other things, classified claimant's reflex sympathetic dystrophy

as a nonschedule permanent partial disability.

In April 2012, claimant, a support aide for persons with developmental disabilities, sustained injuries after being punched in the face by a client. Claimant applied for workers' compensation benefits and her claim was established for injuries to her right eye, right optic nerve and her neck, as well as posttraumatic headache

disorder, reflex sympathetic dystrophy (hereinafter RSD)—also known as complex regional pain syndrome (hereinafter CRPS)—of the right side of her face, a nasal contusion, a right orbital contusion, ringing of the ears and tinnitus.

In 2014, claimant's treating physician raised the issue of permanency and schedule loss of use, opining that, among other things, claimant suffers from a permanent ophthalmologic disability of the right eye, which included a visual field loss of 33?%, that equated to a 66²/₃% schedule loss of use of the eye. Following a hearing, a Workers' Compensation Law Judge found that claimant's vision loss was amenable to a 100% schedule loss of use and that she was also entitled to a schedule loss of use for facial disfigurement. Upon review, the Workers' Compensation Board reversed, finding that claimant's RSD/CRPS and ptosis

of the right eyelid were subject to a nonschedule permanent partial disability classification under Workers' Compensation Law § 15(3)(w). The Board rescinded the schedule loss of use awards and remitted the matter for development of the record on the issue of claimant's loss of wage-earning capacity. Claimant now appeals.

We affirm. Workers' Compensation Law § 15(3) contains a schedule of awards for a permanent partial disability resulting from a loss of specific body parts or functions, such as vision and hearing (see Workers' Compensation Law § 15[3][a]-[v] ). Workers' Compensation Law § 15(3)(w) pertains to "all other cases of permanent partial disability"—i.e., those cases that are not amenable to a schedule award. Whether a schedule loss of use award or a nonschedulable permanent partial disability classification is appropriate constitutes a question of fact for the Board's resolution, and its determination will be upheld if supported by substantial evidence (see Matter of LaClaire v. Birds Eye Foods, Inc., 128 A.D.3d 1298, 1299, 10 N.Y.S.3d 355 [2015] ; Matter of Kondylis v. Alatis Interiors Co., Ltd., 116 A.D.3d 1184, 1185, 984 N.Y.S.2d 204 [2014] ). A nonschedulable permanent partial disability classification, rather than a schedule loss of use award, "is indicated where there is a continuing condition of pain or continuing need for medical treatment or the medical condition remains unsettled" ( Matter of LaClaire v. Birds Eye Foods, Inc., 128 A.D.3d at 1299, 10 N.Y.S.3d 355 [internal quotation marks and citations omitted]; see Matter of Walker v. New Process Gear Div., 201 A.D.2d 768, 769, 607 N.Y.S.2d 486 [1994] ).

Here, claimant's treating physician reported that claimant has RSD/CRPS, with atypical face pain, which is ongoing chronic pain that will include periodic flare-ups of symptoms that will last for between one and seven days that will recur throughout her life. Claimant's treating physician found claimant's RSD/CRPS to be a permanent partial disability. He also found that claimant had a permanent visual defect due to impaired visual acuity and inferior visual field defect, as well as eyebrow ptosis

, which resulted in her right eyelid periodically drooping down over the eye. The physician who conducted an independent medical examination of claimant on behalf of the...