The Full Board, at its meeting held on March 20, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on March 11, 2011.
The issues presented for Mandatory Full Board Review are:
By a notice of decision (NOD) filed on September 8, 2009, the WCLJ found that the claimant's bilateral knee claim was barred by Workers' Compensation Law (WCL) § 28.
By NOD filed on November 9, 2009, the WCLJ found that the claimant did not voluntarily remove himself from the labor market, and found that the claimant has an ongoing moderate disability, and made awards at the moderate rate.
In a memorandum of decision (MOD) filed on March 11, 2011, the Board Panel addressed both the claimant's application for review of the September 8, 2009, NOD, and the carrier's application for review of the November 9, 2009, NOD.
The Board Panel majority affirmed the September 8, 2009, NOD. Although the Board Panel majority found that the bilateral knee claim was not barred by WCL § 28, the majority nonetheless concluded that there was insufficient medical evidence that the claimant's knee injuries were causally related to his employment, and disallowed the claim. The majority affirmed the November 9, 2009, NOD, which precluded Dr. Kudowitz's report, found that the claimant did not voluntarily withdraw from the labor market, and made awards at the moderate disability rate.
The dissenting Board Panel member would have found that the claimant has not shown a sufficient search for work and therefore has not shown a sufficient attachment to the labor market to warrant awards from April 30, 2009, and continuing, but otherwise concurred with the majority's findings.
In its application for Full Board Review, filed with the Board on April 11, 2011, the carrier contends that since the claimant's own treating physicians, Drs. Belli and Zelefsky, testified that their opinions regarding the claimant's degree of disability took into account the injuries to the claimant's knees, which were disallowed, neither Drs. Belli's or Zelefsky's opinions support a finding of awards at a moderate rate. The carrier requests that awards be directed at the mild rate pending clarifying opinions from Drs. Belli and Zelefsky regarding the claimant's degree of disability with respect to the established sites of injury. The carrier further contends that the direction of awards to the claimant be rescinded, as the credible evidence establishes that the claimant's wage loss is not related to the instant claim.
In a rebuttal filed with the Board on May 10, 2011, the claimant requests that the majority opinion be upheld.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The case is established for an occupational disease involving bilateral leg cellulitis and bilateral ankles, with a date of disablement of June 17, 2000. The claimant apparently last worked on July 14, 2000.
By NOD filed on June 9, 2004, the WCLJ, among other things, found that the claimant had not voluntarily withdrawn from the labor market.
In a Form WER-17 issued by the Board's Rehabilitation Bureau dated July 9, 2004, it was noted that the claimant was originally referred to VESID in September 2001, that he has been known to the rehabilitation bureau since September 14, 2001, that he had been involved with job placement services until June 2002, when his participation in VESID was interrupted due to an exacerbation of his symptoms. The report indicates that on the date of the report, the claimant had advised that although he is still in pain he wishes to again pursue vocational services. Last, the report indicates that the claimant's case would be "re-referr[ed]" to VESID for an eligibility determination.
By NOD filed on October 19, 2006, the WCLJ, among other things, amended the claim to include work-related injuries to both knees. However, the carrier subsequently appealed the amendment of the claim, and in an MOD filed on December 5, 2007, the Board Panel rescinded the amendment of the claim to include bilateral knee injuries, and returned the case to the trial calendar for further development of the record on the issue of whether the claim for bilateral knees was barred by WCL §§ 18, 28, and 45.
By NOD filed on March 4, 2008, the claimant was again referred to VESID. In a Form WER-17 dated March 12, 2008, it was noted that the claimant was referred to VESID, and that VESID would contact him directly.
In a Form WER-17 dated June 23, 2008, it was noted that the claimant is now registered with the Queens Workforce 1 Career Center at LaGuardia Community College and that he had also attended an orientation session at VESID on April 22, 2008. It was also noted that having had the opportunity to investigate what both agencies can offer, the claimant had chosen to work with Queens Workforce 1 Career Center and was currently receiving help with his resume and investigating training and placement opportunities.
By NOD filed on July 8, 2008, the WCLJ, among other things, disallowed the claim for bilateral knee injuries, finding that the opinion of claimant's treating physician on the issue of causal relationship was not credible. However, the claimant subsequently sought review of the WCLJ's decision and in an MOD filed on January 12, 2009, the Board Panel rescinded the decision, finding that it was premature for the WCLJ to address the compensability of claimant's bilateral knee injury, and again remitted the matter to the trial calendar for further development of the record.
By NOD filed and amended on September 8, 2009, the WCLJ found that the bilateral knee claim was barred by WCL § 28, and noted that the carrier raises the issue of voluntary removal from the labor market. The claimant filed a timely application for administrative review.
The claimant testified on November 4, 2009, that he has participated with VESID since 2001. He went to VESID in 2001, 2003, 2004, and 2008. While there, he met with various people, was interviewed, and received help preparing his resume. He also went to Queens Workforce Career Center at LaGuardia Community College several times, where he registered and then received referrals. He has received letters from some of the employers that he was referred to indicating that they have no openings for him but that they will keep his resume on file for six months. He has looked for work on his own, stopping in at potential employers and speaking with whoever was in charge, looking in the newspapers (i.e., Spanish newspapers, Daily News, and NY Post), looking online, and sending out resumes.
By NOD filed on November 9, 2009, the WCLJ precluded the report of the carrier's consultant, Dr. Kudowitz, for violating WCL § 137, found no voluntary withdrawal, made awards and directed the carrier to continue payments at the moderate rate. The carrier filed a timely application for administrative review.
A review of the claimant's medical records indicates that, initially, the diagnostic codes on the C-4 forms reflected diagnoses of edema (swelling), foot pain, cellulitis, venous peripheral insufficiency, peripheral vascular disease, phlebitis, and pain in limb.
When the claimant was examined by Dr. Amini, the carrier's consultant, on October 17, 2001, the claimant's range of motion in the knees was normal, and there was no discomfort, tenderness,clicking, or crepitus. The claimant had a mild degree of disability based on the chronic edema and possible cellulitis and lymphangitis; he should avoid standing or walking for long periods of time. When Dr. Amini examined the claimant again on March 27, 2002, the claimant said that he had been told that there was no vascular problem, but that he should see an orthopedic surgeon or podiatrist about the discomfort in his foot. Dr. Amini's evaluations continued to be essentially the same in later examinations, and there was no specific problem with the knees.
The first reference to a separate knee problem was in a C-4 form filed with the Board on January 7, 2003, regarding treatment provided by Dr. Zelefsky on December 23, 2002; it included a diagnostic code for pain in joints in the legs, specifically the knees. A narrative report filed on January 31, 2003, regarding the same treatment indicates that the pain in the knees was consequentially related to the other problems with the legs. Dr. Zelefsky made no reference to any knee problems in subsequent narratives relating to treatment on March 10, 2003; April 7, 2003; May 5, 2003; June 11, 2003; and March 24, 2003. In a report from March 24, 2004, Dr. Zelefsky referred to problems with the knees; however, although the C-4 form appears to be related to the current claimant, the attached narrative refers to a female, with a different first name, who is 20 years younger than the claimant. Subsequent narratives, beginning with May 10, 2004, indicated that the claimant was reporting bilateral knee pain and clicking. The diagnoses regarding the knee indicated that the problem was chronic, and note that the conditions were consequential.
A report from another of the claimant's physicians, Dr. Perrone, related to treatment provided on January 21, 2003, states that it is absolutely unclear how any problems with the claimant's back or knees could be causally related to his work injury. Another of the claimant's doctors, Dr. Belli, referred only to chronic phlebitis of both legs.
The claimant's treating podiatrist, Dr. Belli, testified on June 11, 2009, that he had treated the claimant regularly since June 2006. He conceded that he was not permitted to comment on claimant's knee conditions. He stated that the claimant's "feet are just in horrible shape. It is really a mess to look at. It's horrible." He testified that the claimant's vasculature cannot even hold the circulation. The blood seeps out of the claimant's veins, making it hard for the claimant to walk because he is swelling so much. If the claimant was to stand and walk, it would worsen the claimant's condition. He opined that the claimant is markedly disabled. The claimant could do some very light sedentary work if he did not have to walk a lot. Medication would probably not help the claimant. Vascular pain like the claimant has is very difficult to treat. The claimant has cellulitis that is mostly in his legs, but is affecting his feet as well. The claimant cannot walk for too long. When the claimant is not walking he should keep his foot elevated. The claimant has stiffness in his feet, and does not have a full range of motion.
The claimant's treating physician, Dr. Zelefsky, testified on June 17, 2009, that he continues to treat the claimant. The claimant described that his job as a security worker required him to stand in place on a hard marble floor for approximately 50 hours per week. The claimant was not allowed to walk around or sit, except for very brief breaks. The claimant did that for approximately seven years. As of his most recent examination of the claimant on June 10, 2009, he opined that the claimant was totally disabled from his previous work. For all work, taking into consideration the claimant's knees and ankles, he would give the claimant somewhere between a moderate to marked disability. If he was only considering the claimant's ankles he would probably give the claimant a mild to moderate disability. The claimant would be restricted from any work that would require him to stand for prolonged periods of time or require him to walk.
The claimant was examined by Dr. Kudowitz, the carrier's medical consultant, on February 19, 2009. The report was filed with the Board on March 23, 2009, 22 business days after the examination took place.
There are also some treatment records from 2009, in which the claimant is quoted as saying that the pain in his knees had started "a few weeks" earlier.
Claim for Bilateral Knees
Pursuant to WCL § 28, a claim for compensation involving an occupational disease must be filed within two years after disablement and after the claimant knew or should have known that the disease is or was due to the nature of the employment, or the claim is barred. Thus, prior to determining whether an occupational disease claim is barred by WCL § 28, the Board must determine both the date of disablement and the date the claimant knew or should have known that the disease is or was due to the nature of the employment (see Matter of Coursey v Applied Minds, Inc., 13 AD3d 865 ); Matter of Jex v Albion Corr. Facility, 4 AD3d 574 ). A form C-4 Medical Report, in and of itself, does not meet the filing requirement of WCL § 28 (Matter of Bielat v Alco Prods., 28 AD2d 747 ). However, a C-4 medical report may mark the filing of a claim where it contains information sufficient to provide the Board with the facts of the injury, and from which it might be reasonably inferred that a claim for compensation was being made (Matter of Tagliavento v Borg-Warner Auto, 252 AD2d 753 ).
However, with regard to consequential injuries, "the existence of a relationship between a subsequent claim for injuries and an earlier injury for which a timely claim was filed will permit the amendment of the timely claim to include the subsequent injury, thereby avoiding the Workers' Compensation Law § 28 time bar (see, e.g., Matter of Crawford v New York City Health & Hosp. Corp., 257 AD2d 801)" (Matter of Petillo v Wyckoff Hgts. Hosp., 288 AD2d 515 ).
The Full Board finds that the testimony of the claimant cannot be relied upon in any finding of fact on this issue of the knee injuries, as it was vague, contradictory, and garbled. Moreover, the claimant was given every opportunity to explain when he became aware of the separate injuries to the knees, but he either was unable to do so during his testimony or his attorney did not adequately explain to him the issues involved or prepare him for his testimony. In any event, the claimant has had ample opportunity to develop his claim and will not be provided any further opportunity to present more evidence on this point; the Full Board will base a final determination on the evidence currently available.
The knee injuries, if causally related at all, are either directly related to the claimant's employment or are consequentially related to the already established injuries. If the injuries were consequentially related, WCL § 28 would not be a bar. However, the only evidence to support a finding of consequentially related knee injuries is the medical report from Dr. Zelefsky, and he clearly renounced this position in his testimony. Moreover, there is no credible evidence in the file to show how separate injuries to the knees could have resulted from the cellulitis/phlebitis condition. Therefore, the Full Board finds that there are no consequentially related injuries to the knees.
There is also no evidence to show that any knee condition was the result of a discreet, accidental injury, nor has any such accidental accident been claimed. The last possibility is that the knee conditions were occupational diseases caused by the claimant's employment, conditions that should have been addressed in a separate compensation claim, one unrelated to the current claim except for a common causation. Such a claim would not necessarily have the same date of disablement as the claim for the cellulitis/phlebitis condition, and a separate analysis is necessary to determine whether the claim is barred by WCL § 28.
The Full Board finds that there was no specific reference to any mechanics of injury and nothing to show that the injury was in any way separate from the cellulitis/phlebitis condition in the C-4 form filed on January 7, 2003. The same can be said of the narrative report that was filed on January 31, 2003, which referred only vaguely to bilateral knee pain with no further indication that the report was meant to refer to knee problems other than those related to cellulitis/phlebitis. Therefore, the Full Board finds that the C-4 form and related narrative were not a sufficient notice of a claim for bilateral knee injuries so as to constitute a claim for compensation benefits with regard to WCL § 28. The date of claim for the separate occupational diseases to the knees is therefore January 29, 2004, the date it was raised at a hearing before the Board.
The claimant stopped working on July 14, 2000. The first medical documentation of any bilateral knee conditions was the C-4 form filed with the Board on January 7, 2003, by Dr. Zelefsky, relating to treatment provided on December 23, 2002, and the first time the issue was raised before the Board was at a hearing held on January 29, 2004. However, as noted above, the records from Dr. Zelefsky are not helpful and there is no credible evidence to show when the claimant became aware that occupational diseases to the knees were related to his employment. The earliest documented date by which the claimant must have been aware of the nature of his knee injuries was January 29, 2004. Although the claimant initially testified that he became aware that his knee conditions were caused by his employment while he was still working, he then stated that when he filed his claim in September of 2000 he did not know his knees were a problem. However, as noted above, the claimant's testimony was wholly unreliable, and it is not clear that the claimant has ever clearly understood the legal distinction between the symptoms around his knees caused by the cellulitis/phlebitis and any unrelated orthopedic problem in the knees. Therefore, the Full Board finds that the claimant must be given the benefit of the doubt with regard to the statute of limitations, and the Full Board finds that the claim for bilateral occupational diseases to the knees will not be barred by WCL § 28.
The Full Board must next address whether the case should be amended to include occupational diseases to the knees. The Full Board finds that the medical evidence of Dr. Zelefsky is not credible. There has been no explanation as to why Dr. Zelefsky initially stated that the condition was consequentially related and later that it was directly related. Moreover, he did not explain why, more often than not, there was no mention of any knee complaints in the medical records, or why it took so long for any knee complaints to be documented. The record also includes very divergent statements concerning when the knee complaints began, including 1999, sometime before July 14, 2000. At least one of the claimant's treating physicians indicated that he could not see how the separate knee complaints could be related to any work injury, and there has been no reasonable explanation with regard to why medical documentation did not begin until long after the claimant stopped working.
The Full Board therefore declines to amend the case to include an occupational disease to both knees, or to open a separate compensation file for such an occupational disease.
Preclusion of the Report of Dr. Kudowitz
With regard to the WCL § 137 issues, the Full Board notes that 12 NYCRR 300.2(d)(11) states that the report shall be filed with the Board and the relevant parties within ten business days after the examination. Any such report that does not substantially comply with WCL § 137 and the rules and regulations shall not be admissible as evidence (12 NYCRR 300.2[d]). Additionally, if a carrier's consultant "receives a request for information regarding the claimant, including faxed or electronically transmitted requests, the practitioner shall submit a copy of the request for information to the board within ten days of receipt of the request" (WCL § 137[b]).
The report from Dr. Kudowitz was filed well after ten business days after the examination; the fact that the issue was not immediately raised is not relevant. The Full Board finds, therefore, that the report from Dr. Kudowitz is precluded pursuant to WCL § 137.
Degree of Disability
In evaluating the medical evidence presented, the Board is not bound to accept the testimony or reports of any one expert, either in whole or in part, but is free to choose those it credits and reject those it does not credit (see Matter of Morrell v Onondaga County, 238 AD2d 805 , lv denied 90 NY2d 808 ; Matter of Wood v Leaseway Transp. Corp., 195 AD2d 622 ). Thus, questions of credibility, reasonableness, and relative weight to be accorded to conflicting evidence are questions of fact that come within the exclusive province of the Board (see Matter of Berkley v Irving Trust Co., 15 AD3d 750 ).
Although the carrier correctly noted that Dr. Zelefsky testified that without taking into consideration the claimant's knee condition, he would give the claimant a mild to moderate disability, the carrier also erroneously contends that Dr. Belli testified that his opinion that the claimant has a marked disability takes into account the claimant's knee condition. It is clear from a review of Dr. Belli's reports and testimony that the doctor based his opinion that claimant was markedly disabled based on claimant's established sites of injury, and did not consider claimant's knee injuries in reaching that opinion.
The Full Board finds that a preponderance of the evidence in the record supports awards at the moderate partial rate.
Attachment to the Labor Market
A claimant who is temporarily partially disabled must demonstrate an attachment to the labor market to be entitled to continuing compensation benefits (see Matter of Bacci v Staten Is. Univ. Hosp., 32 AD3d 582 ). A partially disabled person need only seek employment within his or her medical restrictions (Matter of Sanchez v Consolidated Edison Co. of N.Y., Inc., 40 AD3d 1153 ) and for which he or she is qualified (see Matter of St. Francis Constr. Co., 2009 NY Wrk Comp 30705539).
Attachment to the labor market can be demonstrated by credible documentary evidence showing that claimant is actively seeking work within the restrictions through an independent job search that is timely, diligent, and persistent; or is actively participating in a job-location service such as 1) New York State's Department of Labor's re-employment services, 2) One-Stop Career Centers, or 3) a job service commonly utilized to secure work within a specific industry; or is actively participating in vocational rehabilitation through VESID or other Board-approved rehabilitation program; or is actively participating in a job-retraining program; or is attending an accredited educational institution full time to pursue employment within the work restrictions (Matter of American Axle, 2010 NY Wrk Comp 80303659).
Whether a claimant actually maintains an attachment to the labor market sufficient to justify continued compensation benefits is a factual determination for the Board to resolve (Matter of Rothe v United Med. Assoc., 18 AD3d 1093 ).
The claimant testified that he has worked with the Board's rehabilitation office, VESID, and the Queens Workforce Career Center at LaGuardia Community College, meeting with various people, receiving help working on his resume, and receiving referrals. The claimant further testified that he has looked for work in the newspapers, online, and by soliciting local businesses.
Therefore, the Full Board finds that the record supports the WCLJ's opinion that the claimant has remained attached to the labor market. The Full Board notes that although the development of the record pre-dates the Board's decision in Matter of American Axle, id., the claimant participated in the kind of job services noted therein. The Full Board also recognizes that additional testimony and evidence may be necessary going forward to verify that the claimant's ongoing search for work remains diligent, active, and persistent.
ACCORDINGLY, the WCLJ decision filed on September 8, 2009, is MODIFIED to rescind the finding that the claim for an occupational disease to the knees was barred by WCL § 28, and to find that the claim for an occupational disease to the knees is disallowed.
Additionally, the WCLJ decision filed on November 9, 2009, is AFFIRMED. No further action is planned at this time.