Case # 00431137
Date of Accident: 06/29/2004
District Office: NYC
Employer: C V S Pharmacy
Carrier: Fidelity & Guaranty Ins Co
Carrier ID No.: W084503
Carrier Case No.: 10644-39186
Date of Filing of Decision: 06/22/2012
Claimant's Attorney: Angiuli, Katkin & Gentile
Panel: Robert E. Beloten

* This decision also pertains to the following case(s): 00236145

The Full Board, at its meeting held on May 15, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on August 2, 2011.

ISSUES

The issues presented for Mandatory Full Board Review are:

1. whether there is sufficient evidence to support a finding that the claimant has a further causally related disability after September 11, 2009; and
2. whether the issue of the claimant's attachment to the labor market was properly before the Board.

In a notice of decision filed June 3, 2010, the Workers' Compensation Law Judge (WCLJ) made awards from September 11, 2009, to May 28, 2010, and continuing at the tentative rate of $206.33.

The Board Panel majority affirmed the WCLJ's decision.

The dissenting Board Panel member found that awards should be held in abeyance pending further development of the record on the issues of further causally related disability and labor market attachment.

The self-insured employer (SIE) filed an application for Mandatory Full Board Review on September 1, 2011.

The claimant filed a rebuttal on September 30, 2011.

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

FACTS

On June 29, 2004, the claimant, then a 31 year old greeter at a store, sustained a work-related injury to his back when he slipped and fell in the men's restroom. This claim was initially established for the back. By a decision filed December 19, 2006, this claim was amended to include an aggravation of a pre-existing neck injury, awards were made at various rates and the carrier was directed to continue payments at the reduced earnings rate of $206.00 per week. By a decision filed July 24, 2009, the claimant's awards were stopped based on a failure to produce up-to-date medical evidence.

The claimant has another claim, WCB # 00236145, established for the claimant's left leg and back, and later amended to include the claimant's neck due to a work-related injury that occurred on July 2, 2002, when he fell from a ladder while taking inventory. The claimant returned to work in June 2004 and shortly thereafter sustained the injury which is the subject of this case.

The claimant's disability has not been classified as permanent in this case or the related case.

At the hearing on May 28, 2010, the WCLJ considered the issue of further causally related disability.

The record contains 11 narrative reports from claimant's treating physicians, Drs. Rowe and Chang, for treatment rendered between September 11, 2009, and May 12, 2010. Dr. Rowe (pain management specialist) and Dr. Chang (neurosurgeon) are physicians within the same practice. They have been treating the claimant in tandem for pain management associated with his work-related injuries sustained in the 2002 accident and the 2004 accident. Dr. Rowe's medical reports recount a history of lumbar radiculopathy secondary to disc herniation as well as neck pain secondary to degenerative disc disease stemming from a work-related injury in 2002, exacerbated by a second injury upon his return to work in 2004. Dr. Rowe has prescribed the claimant a course of pain medications including Dolophine, Vicodin, and Lyrica. The physical examinations indicate that he is well-nourished/obese (6'4" tall and 480 lbs.), neat, well dressed, and well groomed. He is alert and oriented and has some decreased strength in his lower extremities secondary to pain. His reflexes are diminished and he ambulates with the use of a straight cane. The impressions indicate that the claimant suffers from chronic intractable neck and low back pain secondary to disc herniation and degenerative disc disease. The plan for treatment indicates refills on medication and follow-up visits every eight weeks.

Dr. Chang's report dated September 24, 2009, indicates that the claimant was there for a neurosurgical follow-up and that the claimant's last office visit with him was in 2004. The report indicates that the claimant has been following up with Dr. Rowe for pain management for the past four or five years. The claimant presented to Dr. Chang with continued (managed) back pain, left lower extremity numbness, and significantly increased left knee pain.

Both doctors recommended updated image studies, namely, an MRI of the left knee and MRI of the lumbar spine as well as EMG nerve conduction studies of his lower extremities. They also recommended that the claimant re-start aqua therapy (which proved successful in the past until he developed gout and had to discontinue therapy as a result) and lose weight.

None of the reports for medical treatment rendered in the time period mentioned above comment on the degree of the claimant's disability, and none of the reports were submitted on Board issued forms.

At the hearing on May 28, 2010, the WCLJ found sufficient medical evidence to make awards for September 11, 2009, to May 28, 2010, and continuing, at the tentative rate of $206.33 per week. Awards were made without prejudice to apportionment and WCL §15(8). The WCLJ also authorized medical care and treatment for the established sites of injury; authorized an MRI to the claimant's back; authorized EMG studies of the claimant's lower extremities; and referred the claimant to vocational rehabilitation. The WCLJ's findings were memorialized in a notice of decision filed June 3, 2010. The carrier sought administrative review of that decision.

Subsequent to the May 28, 2010, hearing, Dr. Rowe continued to file reports every 4-8 weeks. While most of the reports do not specifically comment on the degree of the claimant's disability, it should be noted that Dr. Rowe's report for medical treatment rendered on March 23, 2011, indicates a "100% impairment" (see CIS doc. # 180853660, filed 5/13/11 in WCB # 00431137). It should be noted further that the SIE's consultant, Dr. Segretto, found that claimant had a marked partial disability on September 7, 2010 (see CIS doc. # 171189250, filed 9/20/10 in WCB # 00431137).

LEGAL ANALYSIS

Ongoing causally related disability

In the absence of a finding of permanency, there is no presumption of a continuing disability under the Workers' Compensation Law (see Matter of Valentin v THB Intermediaries Corp., 10 AD3d 826 [2004]). Thus, the law requires that the claimant's attending physicians continue to submit progress reports reflecting a continuing disability "at intervals of not less than three weeks apart or at less frequent intervals if requested on forms prescribed by the chair" (WCL § 13-a[4][a]; see also Matter of Cary v Salem Cent. School Dist., 91 AD3d 1000 [2012]; Matter of Rothe v United Med. Assocs., 2 AD3d 1264 [2003]). The regulations currently require progress reports to be filed every 90 days or less (see 12 NYCRR 325-1.3[b][3]), the form C-4.2 prescribed by the Board also requests progress reports to be filed every 90 days, pursuant to WCL § 13-a(4)(a). As a result, a finding of a continuing disability is dependent upon the submission of medical reports by the claimant's attending physicians every 90 days, unless the Board Panel finds that the interests of justice require otherwise, pursuant to WCL § 13-a(4)(a).

Here, the narrative reports submitted by Drs. Rowe and Chang for the period in question were submitted within the appropriate time intervals. Those reports reflect that claimant had ongoing neck and back pain, numbness and decreased strength in his legs, was taking prescription pain medication, and used a cane. However, those reports fail to expressly indicate whether claimant is disabled. In Matter of Cary v Salem Cent School Dist., 91 AD3d 1000 (2012), the Appellate Division provided that a claimant's treating physician is required to submit progress reports reflecting a continuing disability. The Court reversed the Board in that case because the treating physician opined that the claimant was suffering from a causally related disability. In contrast, the medical narratives submitted in this case did not opine a level of impairment. Therefore, the Full Board finds that those reports are insufficient to support awards for period September 11, 2009, to May 28, 2010, and continuing.

It is relevant to note, the reports in this case were not submitted on the forms prescribed by the Chair for the filing of reports of ongoing medical treatment (Forms C-4.2 and C-4NARR), as required by WCL § 13-a(4)(a) and 12 NYCRR 325-1.3. Those forms ask that a treating provider indicate the claimant's degree of impairment at the time of examination, and had Drs. Rowe and Chang utilized those forms and provided all the information requested, the Board would have the necessary information regarding claimant's degree of disability to make awards for the period in question. Claimant can, of course, submit clarifying reports from Drs. Rowe and Chang indicating his degree of disability during that period in support of awards (see Matter of Cary, 91 AD3d 1000 [2012]).

Voluntary withdrawal from the labor market

The SIE argues that it was error for the WCLJ not to address the issue of labor market attachment at the May 28, 2010, hearing. However, the transcript of hearing does not reflect any discussion of the issue of labor market attachment, any testimony on the issue, or any record of the carrier preserving the issue for review. Furthermore, there is no indication in the transcript that the claimant was present at the hearing.

Accordingly, the Full Board finds that the issue of labor market attachment is not properly before the Board for consideration (12 NYCRR 300.13).

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on June 3, 2010, is MODIFIED to hold awards from September 11, 2009, to May 28, 2010, and continuing in abeyance pending the production of clarifying medical evidence of disability during that period. The case is continued.