* This decision also pertains to the following case(s): G0147861.
The Full Board, at its meeting held on July 17, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed October 13, 2011.
The issue presented for Mandatory Full Board Review is whether the claimant suffered an accidental back injury on January 5, 2010.
The Workers' Compensation Law Judge (WCLJ) found the claimant suffered an accidental back injury on August 1, 2008, and that a claim based on that accident is barred by Workers' Compensation Law (WCL) § 18 based on claimant's failure to provide timely notice of the accident. The WCLJ further found that there is insufficient evidence to establish this claim as an occupational disease.
The Board Panel majority reversed and established an accidental back injury based on repetitive trauma, with a date of accident of January 5, 2010.
The dissenting Board Panel member would affirm the WCLJ's findings.
The carrier filed an application for Mandatory Full Board Review on November 7, 2011.
The claimant filed a rebuttal on November 14, 2011.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant is a New York State trooper. On January 20, 2010, the employer filed a C-2 (Employer's Report of Work Related Injury/Illness), indicating that claimant injured his back on August 1, 2008, during defensive tactics training at the State Police Academy, but did not provide notice of the injury until January 12, 2010. Based on the employer's C-2, the Board assembled WCB No. G01457861.
Claimant filed a C-3 (Employee Claim) on February 22, 2010, claimant stated "as a result of my job activities which include extensive driving, walking around with my gun belt, various taken downs, running, training, etc. [I] developed problems with my low back culminating with me [losing] time from work starting 1/5/10."Based on the claimant's C-3, the Board indexed WCB No. G0149084.
The carrier controverted both claims. At a hearing held on March 2, 2010, the WCLJ directed that both claims be heard together.
In a January 15, 2010, C-4 report, claimant's treating orthopedic surgeon, Dr. Dhawan, stated that claimant was "[i]njured on the job 08/01/08.". However, in the attached narrative report, Dr. Dhawan stated the claimant provided a history of having back pain for a few months, but over the course of the last two weeks, he has been having increasing symptoms in his back with radiculopathy. Dr. Dhawan reviewed an MRI which revealed the claimant had a large herniated disc at L5/S1, and he required emergency surgery. Dr. Dhawan performed a discectomy and decompression at L5/S1on January 16, 2010.
In a report dated February 3, 2010, claimant's treating chiropractor, Dr. Syrotynski, found that claimant's "[s]ymptoms stem from his work duties that had irritated his back for several months…" Dr. Syrotynski noted in his report that the job duties that aggravated claimant's back were "throw downs to the mats during defensive tactic training, in-and out of the car, long hours driving/riding with heavy gun belt on."
The claimant was examined by the carrier's orthopedic consultant, Dr. Alvarez, on March 19, 2010. With respect to the history of claimant's injury, Dr. Alvarez wrote:
The claimant's date of injury was reported to be 08/01/08. He reported that while in the academy, he initially felt mild low back pain, but more of left leg pain which started around 11/09. The pain in his leg increased by 12/09. He says he could hardly walk. This was accompanied by numbness tingling sensation. He said he was apprehensive because he just started the academy.
Dr. Alverez concluded that that claimant's back injury was causally related to his employment. In an addendum report dated May 7, 2010, Dr. Alvarez wrote:
I have been asked to clarify the mechanism of injury that led to his back condition. He told me while doing his regular activities and exercises at the Academy, he felt mild pain and stiffness in his back, but more of left leg pain around 11/2009. There was no history of any specific traumatic event. He said that being new in the Academy, he did not complain much about it. He continued with his Academy duties until around 11/2009, at which time, he had serve pain and numbness in his left leg, so he could hardly walk.
The claimant testified at a hearing on April 21, 2010, that he has been a New York State trooper for two years, with the first six months spent in the academy in Albany. The claimant had some low back pain during training, but he did not have any traumatic injury. The claimant did not seek treatment in 2008 and did not undergo any diagnostic tests while training at the academy. At the end of academy training, the claimant passed a physical where the he had to do 70 sit-ups in one minute and run one and one-half miles. The claimant testified that he had mild back pain during training, much like everyone else at the academy. After the claimant left the academy, he spent the next two months shadowing another trooper, and afterwards performed all the duties required of a New York State trooper. The claimant testified his duties included long hours in the car, about 11 hours per day, wearing a 15 to 20 pound gun belt, and wrestling with people to get them under arrest. The claimant testified that he initially had no problems performing these duties. The claimant testified he sat awkwardly in the police car because carrying a nightstick and wearing handcuffs forced him to sit improperly. The claimant testified that his back pain resolved after leaving the academy and that he had no further back pain until September 2009. The claimant testified that he broke up a dog fight at work in September 2009, but that this incident did not cause any back pain. The claimant had mild back pain in September 2009, but did not feel pain going down his leg until in November 2009. The claimant's back pain caused him to stop working on January 5, 2010. The claimant testified that he was involved in a motor vehicle accident in February 2009, but the pain after the accident was limited to his upper back. The claimant missed two days of work following the February 2009 motor vehicle accident and returned to work without pain.
Dr. Syrotynski was deposed on May 21, 2010, and testified that he first treated the claimant for low back pain on February 3, 2010, at the request of claimant's counsel. The claimant indicated that he had experienced back pain while training at the academy, but the pain had totally resolved following the training sessions. Late in 2009, the claimant began to experience severe back pain, unlike anything he previously had, with subsequent radiating pain into the left lower extremity and groin. The claimant stated that his job duties included 12 hour shifts, getting in and out of a car, constant sitting, twisting, crouching with a gun belt, and sitting in a wrenched position while in the trooper car to view monitors located in the center console. The claimant did not report any traumatic incident which caused the back pain to begin. Dr. Syrotynski testified that, in his opinion, the claimant's back pain developed in late 2009 due to repetitive bending, crouching, and prolonged sitting in a car. Dr. Syrotynski opined that the claimant's back pain, which began in 2009, is not related to the back pain he experienced in 2008 while he was at the academy, for which the claimant did not seek treatment. The claimant advised Dr. Syrotynski of the February 2009 motor vehicle accident, and Dr. Syrotynski testified that the February 2009 motor vehicle accident did not cause the claimant's low back injury.
Dr. Dhawan was deposed on July 28, 2010, and testified he first examined the claimant on January 15, 2010, at which time claimant was experiencing excruciating pain down his left leg. Dr. Dhawan testified that, in his opinion, the claimant suffered an annular tear at L5/S1 while training in 2008, but continued to work, and his job duties in late 2009 caused his disc to ultimately herniate.
Dr. Alvarez was deposed on August 3, 2010. Upon being advised of the claimant's job duties as testified to by the claimant (driving 11 hours per day, repetitively getting in and out of the car and walking with a heavy gun belt), Dr. Alvarez stated these job duties were the cause of the claimant's disc herniation. In addition, Dr. Alvarez testified that he did not believe the claimant had a disc herniation in 2008 because the claimant passed a physical which included the claimant running one and one-half miles and performing 70 sit-ups in one minute.
In a September 7, 2010, reserved decision, the WCLJ found that the claimant suffered an accidental back injury on August 1, 2008, and that a claim based on that injury is barred by WCL § 18 because claimant failed to provide timely notice of the accident to his employer. The WCLJ further found that there is insufficient evidence to establish this claim as an occupational disease. The WCLJ found that the opinion of Dr. Syrotynski was not credible and afforded it no weight because claimant was referred to Dr. Syrotynski solely to obtain an opinion on causal relationship and that his opinion was based on "carefully filtered or managed information…" The WCLJ also found that the opinion of Dr. Alvarez was not credible because it was based on the history provided by the claimant, which the WCLJ found to be "suspect."
In its application for Mandatory Full Board Review, the carrier asserts the WCLJ's reserved decision should be reinstated because the claimant's back injury did not occur over the course of time, rather, but occurred in August 2008, and the claimant failed to provide timely notice of his accident pursuant to WCL § 18. Alternatively, the carrier argues that the claimant's employment requiring him to operate a police cruiser for extended periods while wearing a gun belt does not rise to the level of an unusual environmental condition assignable to something extraordinary, that, in turn, caused the claimant's back injury.
The claimant filed a rebuttal arguing that the Board Panel majority correctly established this claim as an accidental injury with a January 5, 2010, date of accident. In the alternative, the claimant argued that if the Board finds that he suffered an August 2008 work accident, his late notice should be excused because he was not aware of the seriousness of his back injury.
While the record reflects that claimant experienced back pain in August 2008 while at the State Police academy, he did not experience pain radiating down his leg at that time, and did not seek treatment. It was not until the fall of 2009 that he began to experience increasingly severe pain in his lower back, which began to radiate down his leg. Claimant's condition progressed until, on January 5, 2010, he could no longer work, and soon thereafter underwent an emergency discectomy and decompression at L5/S1, to repair a severely herniated disc.
"While a compensable accidental injury may either result from a single catastrophic event or develop gradually over a reasonably definite period of time, 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  [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 , quoting Matter of Harrington v Whitford Co., 302 AD2d 645 , quoting Matter of Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129 ).
Here, claimant testified that his duties included long hours in a police car (approximately 11 hours per day) during which he sat in an awkward position because he was wearing handcuffs and a night stick, and wearing a 15 to 20 pound gun belt. Both Dr. Syrotynski and Dr. Alvarez found that these job duties caused claimant's herniated disc. Although Dr. Dhawan found that claimant suffered an annular tear at L5/S1 while training in 2008, he also testified that claimant's job duties in late 2009 caused his disc to ultimately herniate. The clear preponderance of the credible medical evidence in the record supports a finding that claimant's herniated disc resulted from unusual conditions claimant experienced as the result of his work, including having to carry a heavy gun belt and sitting in a vehicle in an awkward position for long periods of time, such that claimant's injury can be characterized as an accidental injury resulting from repetitive trauma.
The Full Board finds that the preponderance of the credible evidence in the record supports the finding that claimant sustained a compensable accidental back injury resulting from repetitive trauma, with a date of accident of January 5, 2010.
ACCORDINGLY, the WCLJ's September 7, 2010, reserved decision is REVERSED. WCB # G0149084 is established for an accidental back injury resulting from repetitive trauma, with a date of accident of January 5, 2010. WCB # G0147861 is cancelled and combined with WCB # G0149084. The case is continued for the WCLJ to set claimant's average weekly wage and to make appropriate awards.