Case # G0104146
Date of Accident: 12/31/2008
District Office: NYC
Employer: NYC Health and Hosp Corp
Carrier: Health & Hospital Corp.
Carrier ID No.: W843502
Carrier Case No.:
Date of Filing of Decision: 01/28/2013
Claimant's Attorney: Grey and Grey LLP
Panel: Robert E. Beloten

The Full Board at its meeting on December 18, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed March 15, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant's injury is causally related to his employment.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim finding that the medical evidence of causal relationship was insufficient to establish the claim.

The Board Panel majority reversed the WCLJ's decision and established the claim, crediting the testimony of the claimant. The majority found that the claimant's bilateral inguinal hernia was a gradually accruing work-related injury and established the date of accident as January 17, 2009, the date the claimant first missed work due to his injury. As such, the majority held that the claimant provided timely notice of his work-related injury to the self-insured employer (SIE), New York City Health & Hospital Corporation, on February 16, 2009.

The dissenting Board Panel member determined that the WCLJ properly disallowed the claim for a lack of sufficient medical evidence, that the medical reports of the claimant's Dr. Luna Vega were not credible, and that the January 17, 2009, date of accident was unsupported by the record, as the claimant had indicated in his C-3 (Employee Claim) form that the accident occurred on December 31, 2008.

In its application for Mandatory Full Board Review, the SIE argues that the dissenting opinion should be adopted and the claim disallowed.

In rebuttal, the claimant contends that the SIE failed to appeal the Board Panel's prior decision on the sufficiency of medical evidence of a causal connection and "therefore there is no longer a viable question in this case as to whether there is adequate medical evidence." The claimant further asserts that the majority opinion should be affirmed, as the SIE "failed to produce any contradictory evidence whatsoever."

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

In a C-3 filed with the Board on March 24, 2009, the claimant, a hospital food service aide, reported suffering bilateral inguinal hernia on December 31, 2008, while lifting a 300 pound bowl of dessert.

In a C-4 (Doctor's Initial Report) dated March 7, 2009, Dr. Luna Vega, the claimant's surgeon, indicated that the claimant's bilateral inguinal hernia was "not related to work."

The claimant was directed to produce clarifying prima facie medical evidence in a WCLJ decision filed on July 23, 2009.

The claimant filed an RFA-1 (Claimant's Request for Further Action) on September 24, 2009. Attached thereto was a letter from Dr. Luna Vega, dated September 12, 2009, in which he opined that the claimant's injury was a result of "strenuous physical activity at work."

In a decision filed on February 11, 2010, the WCLJ found that the claimant had failed to produce sufficient prima facie medical evidence. The claimant appealed and the Board Panel, in a decision filed on July 16, 2010, reversed, finding that there was prima facie medical evidence, and returned the matter to the trial calendar for further proceedings.

At a hearing held on October 7, 2010, the WCLJ determined that the SIE was the correct employer. The claimant testified at the hearing that his position as a service aide at Kings County Hospital required frequent heavy lifting and carrying. He explained that he had worked for the SIE for approximately four years. The claimant stated that he began having stomach pains in 2007, that he stopped work on January 17, 2009, and that he underwent hernia repair surgery in February 2009. He was out of work for approximately one month following the surgery. On cross-examination, the claimant testified that he was diagnosed with a hernia in January 2008. The claimant explained that he had assisted a co-worker in lifting and tilting a very heavy dessert bowl on multiple occasions. The claimant's surgery was paid for by his health insurance company and he requested a leave of absence through the Family and Medical Leave Act. The claimant further testified that he notified the general manager of Food Service Partners about his work-related injury prior to undergoing the hernia repair surgery.

The SIE's office manager also testified at the October 7, 2010, hearing. The office manager explained that Food Service Partners was a private company and was not affiliated with the SIE. She believed that the claimant notified the Food Service Partners general manager about his injury in 2009, after he had applied for Family and Medical Leave. The office manager stated that the employees were not expected to pick up and move the heavy dessert bowl.

The Board file contains a Request for Leave under the Family and Medical Leave Act form, in which the claimant requested leave from January 19, 2009, until February 9, 2009.

A hearing was held on February 9, 2011, at which summations were provided by the parties. It is noted that the SIE's attorney stated that the claimant provided notice of his injury to the employer on February 16, 2009.

In a decision filed on February 14, 2011, the WCLJ disallowed the claim finding that the claimant's medical evidence of causal relationship was insufficient.

LEGAL ANALYSIS

The July 16, 2010, Board Panel decision stated that "prima facie medical evidence is a preliminary and evidentiary threshold in a workers' compensation claim that simply provides a sufficient basis to proceed with further development of the record subject to all of the employer's and carrier's defenses (see Matter of Neighbors Home Care, 2008 NY Wrk Comp 706630 [June 25, 2008])." The Board Panel determined that Dr. Luna Vega's September 12, 2009, letter constituted prima facie medical evidence, as it was "a medical report referencing an injury" (12 NYCRR 300.33[b]; see also 12 NYCRR 300.1[a][9]). There is no requirement that such medical evidence "draw a causal link between the injury and the claimant's employment" (Matter of Garti v Salvation Army, 80 AD3d 1101 [2011]). Therefore, despite the SIE's failure to seek review of the Board Panel's July 16, 2010, decision finding prima facie medical evidence, the issue of causal relationship is currently reviewable.

Causal Relationship

"With respect to [a] finding of accidental injury, the Board is entitled to wide latitude and it is well settled that it may classify an injury as accidental even when it did not arise as a result of a specific traumatic event but accrued gradually over a reasonably definite period of time" (Matter of Ochsner v New Venture Gear, 273 AD2d 715 [2000], lv dismissed 96 NY2d 731 [2001] [internal quotation marks and citations omitted]). In order to establish a gradually developing accidental injury, "it must be demonstrated that a specific aspect of the claimant's workplace was a contributing factor in bringing about the injury" (Matter of Newton v Sears Roebuck & Co., 293 AD2d 862 [2002] [citations omitted]). Also, to establish that the accidental injury developed gradually, rather than suddenly, the claimant must "demonstrate by competent medical evidence that [it] resulted from 'unusual environmental conditions or events assignable to something extraordinary' at his workplace" (Matter of Mazayoff v A.C.V.L. Cos., Inc., 53 AD3d 890 [2008], quoting Matter of Harrington v Whitford Co., 302 AD2d 645 [2003], quoting Matter of Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129 [1994]).

It is "axiomatic that a claimant bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence" (Matter of Williams v Colgate Univ., 54 AD3d 1121 [2008] [citations omitted]). Such medical opinions need not be expressed with absolute or reasonable certainty (Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890 [2009]). They must, however, be an indication of sufficient probability as to the cause of the injury, and the medical opinion must be supported by a rational basis (id.). "[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 [2008] [citations and internal quotation marks omitted]).

Furthermore, WCL § 21(5) provides a presumption that, in the absence of substantial evidence to the contrary, the contents of medical and surgical reports introduced into evidence by claimants for compensation shall constitute prima facie medical evidence of fact as to the matter contained therein. However, the WCL § 21(5) presumption "does not undermine the Board's ability to assess the evidence and determine the weight that it should be accorded" (Matter of Lumia v City of New York, 21 AD3d 600 [2005] [citations omitted]).

The Full Board finds, upon review of the evidence of record, that the claimant's bilateral inguinal hernia is causally related to the heavy lifting required by his position as a service aide and is established as a gradually developing accidental injury. The claimant testified at the October 7, 2010, hearing that he had worked as a service aide for the SIE since approximately 2006, and that his hernial symptoms began in 2007. He explained that his work required considerable heavy lifting and carrying. Therefore, the claimant's repeated lifting of a 300 pound dessert bowl constitutes an "unusual" condition or event of his workplace (Mazayoff, 53 AD3d 890 [2008]). Furthermore, Dr. Luna Vega's September 12, 2009, letter states that the claimant "related" to him that his painful groin symptoms were a result of "strenuous physical activity at work." The doctor goes on to state: "I determined today that this is true." Pursuant to the WCL § 21(5) presumption, this medical report constitutes evidence of fact as to the matter contained therein, absent substantial evidence to the contrary. The record is devoid of contrary evidence, as the SIE failed to request an independent medical examination or a cross-examination of Dr. Luna Vega. Therefore, because Dr. Luna Vega's report indicates an opinion as to the cause of the claimant's bilateral inguinal hernia, it constitutes sufficient evidence of a causal relationship between the claimant's injury and his employment (see Matter of Maye v Alton Mfg., Inc., 90 AD3d 1177 [2011]; Norton, 59 AD3d 890 [2009]).

Date of Accident & Notice

In Matter of Hercules Systems Inc., 2011 NY Wrk Comp 164089, the Board set the date of accident as the date that the claimant began to miss work due to his injury, holding that "the Board is not required in the case of an accident accruing over time to set the date of accident on the date of initial treatment – particularly not when the record shows that the claimant had not yet been advised that his [injury] was related to his employment and when the claimant continued to perform his regular duties…"

The Full Board finds, upon review of the evidence of record, that the date of accident was properly set as of January 17, 2009, and the claimant provided timely notice of his work related injury to the SIE. The claimant testified that he first missed work due to his injury on January 17, 2009, and that he notified a general manager about his work-related injury prior to 2009. The office manager also testified that the claimant provided the SIE with notice in early 2009.

CONCLUSION

Accordingly, the WCLJ decision filed February 14, 2011, is REVERSED. No further action is planned by the Board at this time.