How do you determine how injured someone is under the Longshore and Harbor Workers Compensation Act?

Employment Conditions

The injuries

Mr. Pisaturo fractured his left eye socket (also referred to as his left orbit) and nose. The injury displaced Mr. Pisaturo’s left eyeball within the orbit. As a result of his displaced eyeball, he experienced double vision. He underwent three separate surgeries:

• To repair the left orbital fracture
• To repair the nasal fracture, and
• Strabismus surgery, in an effort to realign his eye and correct his double vision. This final surgery was not wholly successful.

Mr. Pisaturo’s treating ophthalmologist stated that as a result of the residual diplopia (double vision) caused by Mr. Pisaturo’s work injury, Mr. Pisaturo “is visually disabled approximately 30%”.

Mr. Pisaturo’s death was not related to his injuries or his employment.

The employer’s actions

Logistec Connecticut, in response, submitted the opinion of its own ophthalmologist, who, after reviewing Mr. Pisaturo’s medical records on behalf of Logistec Connecticut, opined that Mr. Pisaturo’s diplopia resulted in a 7.5% impairment of the visual system pursuant to the guidelines set forth in the American Medical Association Guides to the Evaluation of Permanent Impairment.

Results of the Initial Hearing

The administrative law judge found Mr. Pisaturo was entitled to a 7.5% permanent partial disability to his left eye pursuant to Section 8(c)(5) of the Longshore and Harbor Workers’ Compensation Act. This was on the basis of Logistec Connecticut’s examining ophthalmologist’s impairment rating.  The administrative law judge rejected Mr. Pisaturo’s ophthalmologist’s opinion as unsubstantiated, observing that, in contrast to Logistec Connecticut’s examining ophthalmologist, who provided a thorough explanation of his impairment rating, Mr. Pisaturo’s ophthalmologist did not explain how his impairment rating was calculated.

Mr. Pisaturo filed a timely motion for reconsideration.  In a Decision and Order issued on December 20, 2013, the administrative law judge granted reconsideration and he amended his prior decision.  The administrative law judge agreed with Mr. Pisaturo that Logistec Connecticut’s examining ophthalmologist’s 7.5% impairment rating, made pursuant to the AMA Guides, represented a rating of the impairment to Mr. Pisaturo’s binocular vision, or visual system.  The administrative law judge found that the Act and the AMA Guides are incongruent in that Section 8(c)(5) of the Act, which provides compensation for loss of use of one eye, whereas the AMA Guides are premised on impairment to the overall visual system.

The administrative law judge then devised a conversion factor in order to reconcile the incongruity that he found to exist between the AMA Guides and the Act, based on there being a 5:1 ratio between disability ratings for one eye under the Act and ratings for impairment to the visual system under the AMA Guides.  Applying this 5:1 ratio to Mr. Pisaturo’s case, the administrative law judge determined that the 7.5% impairment of Mr. Pisaturo’s visual system found by the examining physician pursuant to the AMA Guides equated to a 37.5% impairment of the left eye under Section 8(c)(5) of the Act.  The administrative law judge accordingly amended his prior decision to provide that Mr. Pisaturo was entitled to permanent partial disability benefits for 37.5% impairment to his left eye.

In response to Logistec Connecticut’s motion to vacate, the administrative law judge, in an order issued on December 30, 2013, vacated his December 20, 2013 decision and directed the parties to file briefs about the proper methodology for calculating the degree of visual impairment to one eye in this particular case.  After the filing of the parties’ briefs addressing this issue, the administrative law judge issued a Decision and Order on March 13, 2014. He reinstated his December 20, 2013 decision.  In this regard, the administrative law judge affirmed his previous finding that 37.5% impairment to Mr. Pisaturo’s left eye best reflected the extent of the impairment caused by the work-related injury to that eye.

The Appeal

On appeal, Logistec Connecticut contended that the administrative law judge exceeded his authority in applying a conversion factor to the examining physician’s impairment rating, to award Mr. Pisaturo compensation for 37.5% impairment to the left eye.  Mr. Pisaturo responded that because the examining physician’s 7.5% rating pertained to his visual system as opposed to his left eye only, the administrative law judge’s finding that Mr. Pisaturo had a 37.5% impairment of the left eye was reasonable and represented an appropriate exercise of the administrative law judge’s discretion to interpret and apply the Act to the facts of this case.

Logistec Connecticut filed a reply to Mr. Pisaturo’s response brief, disputing Mr. Pisaturo’s interpretation of the examining physician’s opinion, and contending that the examining physician was addressing impairment in one eye “as his summary of the worst case scenario only related to the one eye that [was] affected by the injury.”

In response to the Board’s March 11, 2015 Order, the Director, Office of Workers’ Compensation Programs (the Director), filed a brief addressing the issue of determining impairment where Mr. Pisaturo’s work-related injury to one eye resulted in impairment to his visual system. The Director contended that the administrative law judge erred by devising a conversion factor to increase the examining physician’s impairment rating and the Director then urged the Board to remand (return for reconsideration) the case for the administrative law judge to reconsider the evidence regarding the extent of impairment to Mr. Pisaturo’s left eye.  Logistec Connecticut replied to the Director’s brief, reiterating its contention that Mr. Pisaturo was limited to an award for 7.5% impairment.

The Ruling on Appeal

The administrative appeal judges found that it was Mr. Pisaturo’s burden to establish the extent of his disability and that he had not done so. They also felt the conversion factor had no basis in law, and that the extent of visual disability should have been determined by referring to the AMA Guides only. As a result, they modified the administrative law judge’s findings and reduced the percentage of disability to 7.5%. Otherwise, they affirmed the initial ruling.