The Full Board, at its meeting held on November 15, 2011, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on April 6, 2011.
The issue presented for Full Board Review is whether the claim should be amended to include causally related injuries to the neck and back.
In a reserved decision filed on October 1, 2009, the WCLJ disallowed the claim for a causally related back injury. The reserved decision did not specifically deny the claim for a causally related neck injury. However, based upon the body of the reserved decision, it is clear that the WCLJ was of the opinion that claimant's neck injury was not casually related to her November 27, 2005, accident.
The majority of the Board Panel modified the reserved decision and amended the claim to include injuries to the neck and back.
The dissenting Board Panel member would disallow the claim for neck and back injuries because there is no contemporaneous medical evidence to confirm the claimant's testimony that she suffered from back pain within a few days after the accident.
In its application for Mandatory Full Board Review, the Self-Insured Employer (SIE) asserts that the claim should be disallowed because the claimant did not initially claim a work-related neck or back injury in her September 8, 2006, C-3 form, there is no contemporaneous medical documentation of a neck or back injury, and that the claimant did not first treat for any neck or back symptoms until March 1, 2006, more than three months after her work accident.
In rebuttal, the claimant asserts that she felt neck and back pain shortly after her work accident but did not pay it much mind because her hand injury was the more significant injury and that she sought treatment for her neck and back pain only three months after her work accident.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This case is established for injuries to the claimant's right fourth finger and left cheek sustained when the claimant was assaulted by a patient at work on November 27, 2005.
The claimant filed three C-3 forms in this case. On September 8, 2006, the claimant filed a handwritten first C-3 form claiming injuries to her face, right hand, and ring finger. On November 14, 2006, the claimant filed a typed C-3 form dated October 17, 2006, claiming injuries to her back, neck, right shoulder, right hand, right ring finger, and left hip. On January 11, 2007, the claimant filed a handwritten C-3 form dated December 27, 2006, claiming injuries to her lower back, neck, and right shoulder.
On October 3, 2006, the SIE filed a C-2 form dated January 31, 2006, indicating the claimant sustained injuries to her right fourth finger and left cheek while assisting a co-employee in restraining an agitated patient on November 27, 2005.
Prior to any hearings being held in this case, the claimant submitted the following medical reports from Montefiore Medical Center: a November 29, 2005, report stating the claimant had an injury to her right hand at work on November 27, 2005; a December 13, 2005, report stating the claimant was seen for the flu; and a January 12, 2006, report stating the claimant complained of laryngitis for the last five days and that she had a fever and a dry cough.
In addition to these reports, the claimant submitted numerous reports from her chiropractor, Dr. McGee. The initial report is dated March 1, 2006. Dr. McGee reported that the claimant presented with severe low back pain radiating into right leg and that her pain had intensified since her November 27, 2005, work-related injury. The C-4 form attached to this narrative report lists causally related diagnoses of a lumbosacral sprain/strain/disc derangement, radiculopathy, and a cervical sprain/strain/disc derangement. In his following narrative report dated April 6, 2006, Dr. McGee stated that the claimant has persistent low back pain and neck pain radiating across the shoulders.
At the initial hearing held on February 15, 2007, the WCLJ established the case to the right small finger and left cheek. The WCLJ also found prima facie medical evidence exists for the neck and back and continued the case to April 19, 2007, for testimony of the claimant and SIE witness regarding the claimant's claims for neck and back injuries.
On April 19, 2007, the claimant testified that she was working on November 27, 2005, she saw a psychiatric patient about to attack another employee when she intervened and wrestled the patient to the floor. She immediately notified her supervisor that she injured her finger and face during the incident. She left work and went to the emergency room to get an x-ray of her hand. Although she did not treat for other injuries, she began having neck and back pain a couple of days after the work accident. She did not immediately treat for her neck and back symptoms because she thought the symptoms would go away. She remained out of work for about two weeks. When she returned to work, she notified her supervisor of the injuries to her back and neck. After returning to work, she took intermittent time off, including about the whole month of March, because her back started to bother her. In all, the claimant missed about three to four months of work until she stopped working on October 16, 2006, because she could no longer work due to her pain. She first sought medical treatment for her neck and back in March 2006. She denied having prior injuries to her back or neck.
No SIE witness was present, and as such, the WCLJ precluded their testimony. After the claimant testified, the case was continued for the claimant and SIE to produce further evidence.
The SIE had the claimant examined by its orthopedic consultant, Dr. Katzman, on June 13, 2007. In his report, Dr. Katzman noted the claimant provided a history that she twisted her back and both hands while trying to apprehend a psychiatric patient at work. The claimant further stated that she hurt her neck, back, left side of her face and right hand as a result of the November 27, 2005, work accident. Upon examining the claimant's face and right hand, Dr. Katzman opined the claimant has a causally related facial contusion and right finger sprain, both of which had been resolved.
Dr. Katzman reexamined the claimant on October 24, 2007, in regards to her claim for work-related injuries to her neck and back. After conducting a physical examination, Dr. Katzman stated he could not find documentation at this time to support a causal relationship of the neck and back injuries to the November 27, 2005, accident.
After receipt of this report, the WCLJ scheduled the testimony of both Drs. McGee and Katzman on the issue of causally related neck and back injuries.
On March 28, 2008, Dr. McGee testified that he first examined the claimant on March 1, 2006, and received a history that the claimant was injured on the job on November 27, 2005, and sustained injuries to her low back, neck, right hand, right finger, and face. On the day of examination, the claimant complained of severe low back pain radiating into her right leg and that her pain had intensified since her injury on November 27, 2005. The intensification of the claimant's symptoms was from the date of accident through his first examination of March 1, 2006. It was unclear from their conversation when the claimant began having complaints to her neck and back. The claimant denied having a prior neck or back injury. Upon examination, the claimant was diagnosed with lumbosacral sprain/strain/disc derangement, radiculopathy, and a cervical sprain/strain/disc derangement, all causally related to the November 27, 2005, work accident because her findings were consistent with her type of injury. The claimant's neck and back disability is not degenerative in nature because her history is consistent with a work-related injury. The fact that a medical report dated two days after the claimant's work accident failed to mention neck or back pain does not alter his opinion on causal relationship. Typically, the type of injuries the claimant suffered progressively worsen over a seven to ten day period.
On April 27, 2009, Dr. Katzman testified that he examined the claimant's neck and back on October 24, 2007, at which time the claimant provided a history that she twisted her back and both hands while trying to apprehend a psychiatric patient at work on November 27, 2005. The claimant complained of pain in her neck and back. The claimant exhibited positive findings to the neck and back upon examination. Despite the positive findings, he could not state the claimant injured either her neck or her back on November 27, 2005, because no documentation existed that the claimant had neck or back pain prior to July 2006. If the claimant complained of neck or back pain within the first three months of injury, then her neck and back injuries should be considered causally related to her work accident. In addition, he would have to reconsider his opinion if the claimant had complaints, and then the pain went away, and then reappeared.
In a reserved decision filed on October 1, 2009, the WCLJ disallowed the claim for a causally related back injury. In reaching this conclusion, the WCLJ credited Dr. Katzman's testimony that any back injury causally related to the incident of November 27, 2005, would have manifested itself in a matter of weeks, not months, and Dr. McGee's testimony that injures such as the one alleged by the claimant typically worsen over a seven to ten day period following the initial incident. However, the claimant did not seek medical treatment until March 1, 2006, more than three months after her work accident. The reserved decision did not specifically deny the claim for a causally related neck injury. However, based upon the body of the reserved decision, it is clear that the WCLJ was of the opinion that claimant's neck injury was not casually related to her November 27, 2005, accident.
When there is conflicting evidence, the Board is afforded deference in determining witness credibility, and as long as such determination is supported by substantial evidence, such decision will be upheld despite the existence of evidence that may have supported a different result (Matter of Guifarro v Zalman, Reiss & Assoc., 52 AD3d 1127 ). In addition, the Board is vested with the discretion to evaluate the credibility of witnesses (Matter of Donovan v BOCES Rockland County, 63 AD3d 1310 ).
In this case, the claimant credibly testified that her neck and back pain commenced days after the November 27, 2005, work accident. Although the claimant did not seek immediate medical treatment for her neck and back pain, and thus no contemporaneous medical evidence exists, she persuasively testified that she thought the pain would go away without the need for medical treatment. Once the pain worsened, the claimant sought chiropractic treatment with Dr. McGee on March 1, 2007.
Based on the preponderance of the evidence in the record, this claim is amended to include causally related injuries to the neck and back.
ACCORDINGLY, the WCLJ decision filed on October 1, 2009, is MODIFIED to reflect that the case is amended to include injuries to the neck and back. The case is continued.