James Salvatore v. O’Reilly Auto Enterprises– Where one of two sec. 207 medical examiner’s opined that Salvatore’s 2016 left shoulder injury, which was surgically repaired, continued to be symptomatic and contribute to incapacity following Salvatore’s 2019 neck and right shoulder injury at Advance Auto Parts, the ALJ did not err in granting Advance’s petition for apportionment even though Salvatore was working without restriction and earning higher wages at the time of the 2019 injury. In Salvatore v. O’Reilly Auto Enterprises, Dec. No. 22-37, Salvatore had pre-existing neck and left rotator cuff condition when he went to work for O’Reilly. On 12/19/16 he fell on ice while making a delivery. His orthopedist found that tearing to the RTC increased compared to a 2011 MRI and new surgical repair was completed, without success. A follow-up surgery was canceled when Salvatore had a heart attack. The need for a future left shoulder replacement was under consideration when in September 2018 he was released to work activity as tolerated. Salvatore found higher paying employment with Advance Auto in October 2018. He fell again at work, this time with Advance, on 2/15/19 injuring his neck and right arm. Post injury MRI revealed a chronic left supraspinatus tear. An initial sec. 207 exam with Dr. Herzog stated that Salvatore was having no problems with his left shoulder even while acknowledging he was scheduled for surgery. A later sec. 207 exam with neurosurgeon Dr. Omsberg stated that the left shoulder condition was a problem and that both injuries contributed to ongoing incapacity. He did not specify an apportionment percentage.

The ALJ granted Advance’s petition for apportionment, accepting Dr. Omsberg’s conclusions and apportioning responsibility 50/50 under the Kidder decision. O’Reilly appealed, arguing the evidence did not support the ALJ’s findings because the left shoulder complaints were subjective, Salvatore had no work restrictions in place when he started with Advance, could perform all the duties required by Advance, and was earning more than his O’Reilly 2016 aww at the time of 2019 injury. The Appellate Division affirmed, concluding that O’Reilly seeks to have Advance prove more than is required to establish apportionment under sec. 354. Dr. Omsberg’s opinions were sufficient for Advance to meet its burden of proof. It also rejected O’Reilly’s argument that the ALJ erred in adopting Dr. Omsberg’s opinions because Dr. Omsberg testified he might defer to an orthopedist. The fact he might defer did not equate to Dr. Omsberg being unqualified. Finally, the fact that Salvatore was earning higher wages at Advance did not preclude apportionment. Citing the Severy decision, the panel stated that while higher post injury earnings are relevant, they are not determinative as to whether the O’Reilly injury could contribute to ongoing earning incapacity.

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Thomas Getchell
Daniel F. Gilligan