Case # G0305388
Date of Accident:
District Office: NYC
Employer: NYC Police Dept
Carrier: Police, Fire, Sanitation
Carrier ID No.: W846505
Carrier Case No.:
Date of Filing of Decision: 01/28/2013
Claimant's Attorney: Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano, LLP
Panel: Robert E. Beloten

The Full Board, at its meeting held on December 18, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on April 2, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether injuries to the claimant's back, feet, and left hip are compensable.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim, finding that the claimant's injuries did not constitute an accident or an occupational disease.

In a Memorandum of Decision filed on April 2, 2012, the Board Panel majority established the claim for injuries to the back, both feet, and left hip as an occupational disease. The Board Panel found that the credible evidence supports a finding that the repetitive and prolonged physical requirements of the claimant's employment as a school safety agent contributed to the development of her injuries to the hip, feet and back; that the claimant's injuries are a natural incident of her work activities, and therefore a recognizable link exists between the claimant's disability and her required excessive standing and walking, which is a distinctive feature of the claimant' employment.

The dissenting Board Panel member would have found that the evidence in the record is not sufficient to support a claim for an occupational disease. The dissent would find that while standing and walking may constitute a significant feature of the occupation of school safety officer, they are not sufficiently distinctive features to support a claim for an occupational disease. The dissent would further find that the claimant had not demonstrated an accident arising out of and in the course of employment either.

In its application for Mandatory Full Board Review, filed with the Board on May 2, 2012, the self-insured employer (SIE) contends that the claimant's injuries do not constitute an occupational disease. The SIE contends that there has been no evidence presented that the job duties of a school safety agent cause bilateral ankle and back pain as a natural incident of employment.

In her rebuttal, filed with the Board on May 29, 2012, the claimant contends that based on the credible testimony of the claimant, as well as the medical evidence, the opinion of the Board Panel majority is correct and should be affirmed in its entirety.

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

FACTS

On July 2, 2010, the claimant filed a C-3 (Employee Claim) alleging that she sustained injuries to her left hip, bilateral feet, and back as the result of patrolling schools in the course of her employment as a school safety officer.

In his initial report, based on a May 27, 2010, examination, the claimant's treating orthopedist, Dr. Ahmad, diagnosed injuries to claimant's back and ankle. Dr. Ahmad noted that claimant "states that while at work she injured her back and both ankles." Dr. Ahmad found that claimant's injuries were causally related, based on the history provided, and indicated that May 19, 2004, was the date of injury.

In his initial report, based on a June 11, 2010, examination, claimant's treating chiropractor, Dr. Kamins, noted that claimant "states that while at work she injured her back," and indicated that the injury occurred on May 19, 2004. Dr. Kamins found that claimant's back injury was causally related based on the history provided.

The claimant was examined by the SIE's consulting orthopedist, Dr. Parisien, on November 18, 2010. In his report, Dr. Parisien wrote that the "claimant states that due to repetitive motion of standing at her work place, she injured her lower back, hips and ankles that were reported May 26, 2010." Dr. Parisien offered the following diagnoses: "status post lumber sprain/strain, status post bilateral hip contusion, status post bilateral ankle sprain, pre-existing lumbar spine degenerative changes, pre-existing right ankle injury and pre-existing right ankle tendinitis." Dr. Parisien concluded that "the lumbar spine and bilateral ankle injuries and the reported accident are partially causally related. The hips injury is causally related to the above accident."

The claimant testified on October 21, 2010, that she started working for the New York Police Department as a school safety agent in February 2004. She stopped working on July 1, 2009. In May 2009 she went to the emergency room due to pain in her left ankle. Her pain started in the left ankle; however, the pain went to both ankles. The ER referred her to a podiatrist, Dr. Campbell. Dr. Campbell performed an MRI on her. She was told that she had tendinitis in her ankle caused by overuse due to standing too much. Dr. Campbell advised her that if she cannot work light duty she should stop working. Her job duties included monitoring the cafeteria, breaking up fights, patrolling inside and outside of the building, and making arrests. Her job requires her to move around, walk up and down stairs and stand. Generally, she works five days a week, eight hours a day. However, she is subject to mandatory overtime. Of the eight hours a day she works, six hours and 45 minutes a day she is on her feet and walking around. She is not permitted to sit during that time. The employer gives her 45 minutes a day at the front desk sitting down, and a 30 minute lunch break. Overtime at the elementary school involves sitting down. Overtime at the junior high school or high school involves standing. She could work anywhere between 10 and 20 hours of overtime per week. In 2004, she sprained her right ankle while at the police academy and treated for less than a year. Besides her ankles, she is also treating for her lower back. Her doctor gave her a boot to wear for her ankle that went up to her knee. The doctor told her that her back hurt because of the way the boot affected her walk. The doctor explained that the boot made one foot high, and since the other foot was low, when she walked, her spine was not straight.

The SIE's supervisor of school security testified on October 21, 2010, that between December 2008 and July 2009, he supervised 13 schools. He was the claimant's supervisor. The claimant's job duties included patrolling the main entrance of the school, checking identification cards, and maintaining a safe environment within the school. The amount of hours the claimant was on her feet during the day fluctuated. It depended on her assignment for any given day. Before the claimant stopped working in July 2009, she had advised him that she was injured at home while moving furniture. He does not recall the specific month the claimant informed him about the injury that she sustained at home. He did not realize that she was stopping work until he was advised by the office that the claimant had submitted a leave request. On cross-examination he testified that as a school safety officer [when not assigned to an elementary school] you would be given different posts. Part of the job would entail patrolling both inside and outside the hallways, clearing the hallways in between classes and monitoring the lunchroom. With the exception of monitoring the entrance, the different jobs involve walking and standing. He confirmed the claimant's testimony that at any given time her job duties included being at different locations within the school's two buildings, walking corridors, patrolling, monitoring people at lunch, and monitoring people outside.

By a decision filed on January 5, 2011, the WCLJ disallowed the claim. The WCLJ reasoned that the claimant has not established a link between the injuries as alleged and a distinctive feature of her employment to establish a claim for an occupational disease. The WCLJ also held that the claimant has not alleged any unusual environmental conditions or events assignable to something extraordinary which caused an accidental injury.

LEGAL ANALYSIS

"'An occupational disease is a condition which derives from the very nature of the employment and not from an environmental condition specific to the place of work' (Matter of Bates v Marine Midland Bank, 256 AD2d 948 [1998]). To establish an occupational disease, a claimant must demonstrate a 'recognizable link' between the alleged condition and a 'distinctive feature' of his or her work (Matter of Winn v Hudson Val. Equine Ctr., 215 AD2d 920 [1995])" (Matter of Ball v New Era Cap Co., Inc., 21 AD3d 618 [2005] [additional citations omitted]).

Evidence that a repetitive action is a distinct feature of a claimant's employment together with medical evidence of the necessary causal link will support a claim for an occupational disease (see Matter of Aldrich v St. Joseph's Hosp., 305 AD2d 908 [2003]). In Aldrich, the court found that as the evidence established that repetitive walking to care for patients was a distinct feature of claimant's job and the medical proof substantiated the necessary causal link, substantial evidence supported the Board's finding that claimant suffered a compensable occupational disease.

In Matter of PGA Mechanical Contractors, the Full Board found that the claimant's job as a carpenter which consisted of constant and repetitive carrying, walking, and standing, along with the medical evidence supported establishing the claim for an occupational disease to the left foot (2011 NY Work Comp G0010375, August 10, 2011).

In the instant case, the claimant alleged injuries to her back, both feet and her left hip as the result of patrolling schools in the course of her employment as a school safety officer. The claimant testified that her job requires her to move around, walk up and down stairs and stand; that of the eight hours a day she works, six hours and 45 minutes a day she is on her feet and walking around; and that she is not permitted to sit when she has to patrol. The claimant's supervisor testified that with the exception of monitoring the entrance, the different jobs of patrolling involve walking and standing. He confirmed the claimant's testimony that at any given time her job duties included being at different locations within the school's two buildings, walking corridors, patrolling, monitoring people at lunch, and monitoring people outside.

Based on the credible testimony of the claimant, which was confirmed by the claimant's supervisor, the record supports a finding that walking and standing were distinctive features of the claimant's job as a school safety officer.

As to causal relationship, the medical evidence submitted by the claimant's medical providers was not sufficient to establish the claim, as both the claimant's treating orthopedist and treating chiropractor merely indicated that the claimant was injured "while at work" without providing any further explanation. Furthermore, both doctors attributed the claimant's injuries to a 2004 accident. However, the carrier's orthopedic consultant provided a history that due to repetitive motion of standing at her workplace, the claimant injured her lower back, hips, and ankles. The consultant diagnosed the claimant with various injuries to her back, bilateral ankles, and bilateral hips. The consultant opined that the injuries to the claimant's back and ankles were partially causally related to the claimant's employment and that the injuries to her hips were causally related.

The opinion of the carrier's consultant supports a finding that the claimant's injuries were causally related to her employment.

The Full Board finds that the preponderance of the evidence in the record supports establishing the claim for an occupational disease to the claimant's back, bilateral feet, and left hip, with a date of disablement of July 1, 2009 (the date the claimant stopped work).

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on January 5, 2011, is REVERSED. This claim is established for an occupational disease to the claimant's back, bilateral feet, and left hip, with a date of disablement of July 1, 2009 (the date the claimant stopped work). The case is continued to address all outstanding issues.