The Full Board, at its meeting held on April 17, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on August 26, 2011.
The issue presented for Mandatory Full Board Review is whether Workers' Compensation Law (WCL) § 15(8)(d) applies.
By decision filed on March 4, 2011, the Workers' Compensation Law Judge (WCLJ) determined that the case is not subject to the provisions of WCL § 15(8)(d).
In a Memorandum of Decision filed on August 26, 2011, the Board Panel majority disagreed with the WCLJ and found that WCL § 15(8)(d) applied. The majority found that based on the credible opinion of Dr. Buckner, the claimant's preexisting diabetes, which is permanent in nature, was a likely hindrance to the claimant's employment.
The dissenting Board Panel member would have found that WCL § 15(8)(d) is not applicable herein. The dissent would have found the carrier produced insufficient evidence that the claimant's alleged prior permanent impairment was a hindrance to, or likely to be a hindrance to his employment.
In its application for Mandatory Full Board Review, filed with the Board on September 21, 2011, the Special Funds Conservation Committee (Special Funds) contends that a finding of WCL § 15(8)(d) liability is not appropriate as the carrier did not meet its burden of proof in that it did not show sufficient proof of a prior permanent impairment that was a hindrance to employment, nor did it offer sufficient evidence that the claimant's overall disability is materially and substantially greater due to the prior impairments than it would be due to the injury of record alone.
In a rebuttal filed with the Board on October 18, 2011, the carrier asserts that the majority opinion is supported by substantial evidence and should not be disturbed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The case is established for a work-related injury to the claimant's neck resulting from an accident that occurred on April 30, 2004. The claimant's average weekly wage was set at $509.86. The claimant has been classified with a permanent partial disability.
On June 29, 2004, the carrier submitted a Form C-250 (Notice of Claim for Reimbursement Out of the Special Disability Fund Under Section 15, Subd. 8), indicating that the claimant has a previous physical impairment of diabetes.
The Special Funds consulting orthopedist, Dr. Cassels, testified on January 11, 2011, that he performed a chart review and issued a corresponding report. He never examined or spoke with the claimant. The claimant's diabetes is a permanent condition. He saw no indication that the claimant's diabetes caused any end organ damage. He did not see any indications that the claimant's work was restricted or modified, that the claimant lost time from work, or that the claimant was denied work anywhere due to his diabetes. He did not see any indication that the claimant's diabetes posed a hindrance or obstacle to his employment. He noted that the claimant's underlying work injury resulted when a heavy object fell on him. The injury was orthopedic in nature. As an orthopedist, he does not treat diabetes. He was not provided with any records regarding treatment rendered to the claimant specific to his diabetes. He has no knowledge as to whether the claimant's diabetes was well controlled at the time of the work accident. He would agree that uncontrolled diabetes can produce physical problems that can affect an individual's ability to perform certain work tasks. He does not know if that was the case here. Physical problems caused by diabetes that is not well controlled include vision problems, hearing problems, increased risk of cardiovascular disease, stroke and neuropathy involving the extremities. If a person's diabetes is well controlled, and the person was in good health, the diabetes alone would not cause a hindrance to employment. As to employment generally, in order to ascertain what limitations would be required, he would need to know if the claimant had any physical conditions resulting from his diabetes, and the claimant's job description. He did not see any indication that the claimant's diabetes played any part in the claimant's work injury.
The carrier's consulting orthopedist, Dr. Buckner, testified on January 27, 2011, that he examined the claimant in May 2006 and April 2008, and performed a record review for WCL § 15(8)(d) purposes in June 2010. He reviewed numerous medical records from 2002 through 2008. The claimant informed him that he was a truck driver and heavy equipment operator. The claimant has diabetes which is a preexisting permanent condition. Diabetes causes a person to have complications with regard to functioning of various systems in the body. Diabetes creates an increased risk of a person developing kidney function problems, cardiovascular disease, vision problems, hearing problems, and peripheral neuropathy. Medical records since 2002 documented signs of peripheral neuropathy (i.e., numbness and tingling in the claimant's extremities) which were present during physical examinations of the claimant. There are a lot of things that can cause peripheral neuropathy, but in this case the only documented condition claimant suffered from that can cause it is diabetes. Peripheral neuropathy can affect a person's ability to perform certain jobs (i.e., operate equipment or drive). Also, because of his diabetes, the claimant should avoid work that requires him to climb, scaffolding work, or work that is performed at heights. His unequivocal opinion is that the claimant's diabetes constitutes a preexisting permanent physical impairment which when combined with the April 30, 2004, neck injury rendered the claimant's overall disability materially and substantially greater than it would have been from the April 30, 2004, work injury alone. The records he reviewed indicated that the claimant's diabetes was poorly controlled. The claimant was beginning to have eye problems likely related to diabetes and was referred to an ophthalmologist. Although, in his practice as an orthopedic surgeon, he does not manage his patients' diabetes, he does treat patients with diabetes and complications from diabetes. He did not know if due to the claimant's diabetes, the claimant had been taken out of work, had work restrictions, or if the claimant had difficulty performing his job.
By reserved decision filed on March 4, 2011, the WCLJ found that the case was not subject to the provisions of WCL § 15(8)(d). The WCLJ found that there is no evidence of hindrance to job potential, as there is no evidence that the claimant's diabetes caused him any difficulty in performing his job, caused him to lose time from work, or necessitated any work restrictions.
For any case with a date of accident or disablement from August 1, 1994, to June 30, 2007, inclusive, an employer or its carrier may obtain reimbursement from the Special Funds for compensation and medical benefits paid after 260 weeks of disability, provided the employer or carrier can show that: (1) the claimant has a preexisting permanent physical impairment that hinders, or is likely to hinder, job potential; (2) the claimant has a subsequent work-related injury or occupational disease; and (3) a permanent disability caused by both conditions that is materially and substantially greater than that which would have been caused by the subsequent work-related condition alone (see WCL § 15[d]; § 15[h][A]; Matter of Shepler v City of Tonawanda, 67 AD3d 1313 ; Matter of Guarascio v Spargo Wire Co., 32 AD3d 1148 ).
For the first requirement, "the issue is not whether the pre-existing condition is an obstacle or likely to become a handicap to the particular job, but rather whether it is a hindrance to or limits [the claimant's] employability generally (Matter of Nagorka v Goldstein, 4 AD2d 904; Matter of Torelli v Robert Hall Clothes, 9 AD2d 147)" (Matter of De Dominic v Schlitz Brewing Co., 30 AD2d 578 ).
"The reference to being employed or being retained in employment is not restricted to the claimant's particular employment at the time of injury but refers to employment in a general sense, i.e., the claimant's opportunity for employment in the labor market as a whole. To say that a continuance in employment supports a finding that a condition is not a hindrance or obstacle to employment thwarts the purpose of subdivision 8 of section 15." (Matter of Simon v Columbia Pictures Corp., 8 AD2d 563) (Citations omitted)
In the instant case, both the carrier and the Special Funds had consultants perform a record review. Both consultants agreed that the claimant's diabetes constituted a prior permanent impairment. The carrier's consultant, Dr. Buckner, reviewed numerous medical records for the claimant for the years from 2002 up through 2008. Dr. Buckner testified that the records he reviewed indicated that the claimant's diabetes was poorly controlled. Dr. Buckner noted that the medical records since 2002 documented signs of peripheral neuropathy (i.e., numbness and tingling in the claimant's extremities) which could affect the claimant's ability to perform certain jobs (i.e., operating equipment, driving). Dr. Buchner also commented that because of his diabetes the claimant should avoid performing any work that requires climbing, or work at elevated heights. Dr. Buckner also testified that the claimant was beginning to have eye problems likely related to diabetes and was referred to an ophthalmologist. Dr. Buckner further opined that the claimant's diabetes constitutes a preexisting permanent physical impairment which when combined with the April 30, 2004, neck injury rendered the claimant's overall disability materially and substantially greater than it would have been from the April 30, 2004, work injury alone. The Special Funds' consultant, Dr. Cassels conceded that he was not provided with any records regarding treatment rendered to the claimant specific to his diabetes, and that he has no knowledge as to whether the claimant's diabetes was well controlled at the time of the work accident. Dr. Cassels also agreed that uncontrolled diabetes can produce physical problems that can affect an individual's ability to perform certain work tasks.
Based on Dr. Buckner's credible testimony and the concessions made by Dr. Cassels, the preponderance of the evidence in the record supports that the claimant's diabetes constituted a prior permanent impairment that hindered his job potential, the claimant had a subsequent work-related injury, and the claimant has a permanent disability caused by both conditions that is materially and substantially greater than that which would have been caused by the subsequent work-related condition alone. That the claimant was able to perform work despite this preexisting condition does not preclude a finding of a likely hindrance to employment.
Therefore, based on the preceding, the Full Board finds that the record supports that WCL § 15(8)(d) applies to this case.
ACCORDINGLY, the WCLJ decision filed on March 4, 2011, is REVERSED to find that WCL § 15(8)(d) applies to this case. The Special Fund is to be placed back on notice. No further action is planned at this time.