The Full Board at its meeting on May 15, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel memorandum of decision (MOD) filed August 1, 2011.
The issue presented for Mandatory Full Board Review is whether the claimant retired from his employment with the self-insured employer (SIE) due in part to his occupational low back injury.
In a reserved decision filed on October 21, 2010, the Workers' Compensation Law Judge (WCLJ) determined that there was no relationship between the claimant's occupational back injury and his retirement, and declined to award benefits for the period subsequent to his retirement.
The Board Panel majority reversed the WCLJ's decision, finding that the claimant's established low back condition contributed to his decision to retire and returned the matter to the trial calendar for awards.
The dissenting Board Panel member determined that the claimant did not retire due to his low back condition and therefore claimant had causally related lost time.
In its application for Mandatory Full Board Review, the SIE asserts that the record compels the conclusion that the claimant's decision to retire had nothing to do with his established occupational low back disease, but instead was caused by the effects of an unrelated tumor removal surgery.
In rebuttal, the claimant asserts that the Board Panel properly determined that the claimant's causally related injuries compelled his retirement.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, a police officer, filed a C-3 (Employee's Claim for Compensation) form on February 20, 2007, alleging that he sustained work related back and leg injuries as a result of wearing a heavy police belt and riding a police scooter.
Claimant had previously stopped working on March 31, 2005. In a narrative report dated April 6, 2005, the claimant's treating physician, Dr. Sonstein, stated that claimant "has had about 3 month's worth of progressive weakness of his lower extremities, left greater than right, with some numbness. He has some low back pain." On April 22, 2005, claimant underwent removal of a benign tumor on his thoracic spine. Claimant never returned to work and ultimately retired from the police department on May 26, 2007, at the age of 66.
In his February 7, 2007, report, Dr. Sonstein found that claimant's low back injury was caused by claimant riding a scooter at work between 1982 and 1996, and wearing a heavy gun belt. Dr. Sonstein concluded that the claimant can no longer work as a police officer.
In an IME-4 (Practitioner's Report of Independent Medical Examination) form dated December 19, 2008, and filed with the Board on December 30, 2008, the SIE's consultant, Dr. Kumar, opined that it is quite possible, based on his review of the medical evidence available to him, that the claimant developed degenerative changes of the lumbar spine and spondylolistthesis at L4-5 as a result of his duties as a police officer for the SIE over a forty year period. Dr. Kumar further opined that there is no evidence that the claimant's symptoms are related to his thoracic spine surgery.
In a decision filed on January 5, 2009, occupational disease, notice and causal relationship was established for a low back injury sustained as a result of the claimant's duties as a police officer, with a February 7, 2007, date of disablement. No awards were made and the case was continued to permit the SIE to investigate the issue of voluntary retirement.
In a decision filed on February 12, 2009, the WCLJ directed the parties to depose Dr. Sonstein and continued the case for further development on the issue of voluntary retirement.
At a hearing held on March 31, 2009, the claimant testified that he was employed by the SIE as a police officer for 42 years, 40 of which was spent in the street operating a motor vehicle. In the last two months of his active employment, he experienced back pain, tingly feet, and problems with his legs. He continued to work until his condition became too bad. He was sent to a neurologist, Dr. Robinson, who ordered an MRI and discovered a benign tumor inside of his upper spinal cord that required major surgery and necessitated that he miss work. The surgery was performed by Dr. Sonstein, who he has continued to treat with over the last three and a half years, once every six weeks. He went to 40 sessions of physical therapy in an effort to return to his employment as a police officer, as he loved his job. He suffered from shooting pain in his low back that would not go away and was ultimately diagnosed as spinal stenosis. He currently has constant low back pain, numbness in his upper right leg, and weakness in both knees that necessitates his use of a cane prescribed by Dr. Sonstein. Dr. Sonstein informed him that he is not capable of returning to work in any capacity. He saw a police surgeon every month to two months in the first year following his 2005 surgery. The police surgeon informed him that he could not return to work as a police officer, either at full or restricted duty, due to his lower back problem, and had to retire. Dr. Sonstein concurred with the opinion of the police surgeon that he needed to retire. The claimant completed his retirement paperwork indicating that the reason for his retirement was that, "I can no longer work on the job as a police officer because I cannot perform my duties as advised by my doctor" (p. 7). He filed for an ordinary retirement. He did not file for a disability retirement as he was not initially sure of the cause of his back condition and was not sure whether he would be entitled to a disability retirement. Dr. Sonstein and the SIE's consultant Dr. Kumar subsequently attributed his low back condition to his use of a heavy gun belt for his entire forty year career. He then looked into the possibility of filing for a disability retirement, but found that he would have receive less money for a disability retirement than he was receiving for his regular retirement. He has not searched for any work subsequent to retiring. He testified that his back injury was the sole reason for his retirement.
On cross-examination, the claimant testified that he went out sick on March 31, 2005. He never returned to work after that date, retiring on May 26, 2007. He has not returned to work in any capacity since retiring, he never explored job re-training or vocational rehabilitation, as Dr. Sonstein was of the opinion that the claimant could perform no work due to his spine surgery and his low back condition. The police surgeon was of the opinion that the claimant should stay out of work due to the tumor and subsequent removal surgery. He also suffers from hypertension that was not controlled until after his retirement. His hypertension was a concern at the time he was taken out of work. He was prescribed a cane following his April 2005 surgery. Dr. Sonstein never informed him that the tumor was work related. He attempts to rake leaves and mow the lawn with a power mower. He drives and is able to shop with the aid of a cart. He has not been involved in any subsequent accident. He is treating with Dr. Maillox for his hypertension. He has cysts on his kidneys and treats with a cardiologist, Dr. Jhaveri.
The commanding officer of the SIE's medical administration office testified at a hearing held on March 31, 2009, that the claimant retired from his employment on May 26, 2007. Claimant last worked for the SIE on March 31, 2005. An officer out on long-term sick leave is required to report to the police surgeon. The claimant reported to the police surgeon every two months. The police surgeon's reports between March 31, 2005 and May 26, 2007, indicate that the claimant stopped working due to a hemangioma (tumor), upper back injury and hypertension. The police surgeon deemed the claimant incapable of working due to these conditions. The claimant's treating physicians did not authorize a return to work due to those two conditions. His office did not become aware of the claimant's compensable low back condition until July 11, 2006. There is no indication in the medical reports of a low back injury prior to that date. The claimant took a service retirement based on his 42 years of service with the employer.
Dr. Sonstein testified at a deposition held on April 27, 2009, that he began treatment of the claimant on April 6, 2005. He performed surgery on the claimant's upper back due to the discovery of a tumor in the thoracic spine on April 2, 2005. He also saw the claimant for low back pain, but that the tumor took precedence. Claimant provided a history of riding in a patrol car that could have resulted in his low back condition. The wearing of a very heavy gun belt and the riding of a scooter between 1982 and 1996 caused his low back condition. He could no longer work as a police officer. In correspondence dated February 7, 2007, he opined that the claimant should cease working as a police officer. Claimant has a grade one spondylolisthesis at L4-5 with disc disease associated with it, which was brought about by wear and tear from the claimant's work duties. The claimant's totally disabled due to his low back condition and other factors including his prior thoracic spine surgery. He has continued to see the claimant since February of 2007, once every six weeks. Claimant's condition waxes and wanes. Claimant's back condition is permanent and total. The claimant's low back condition is causally related to his employment as a police officer.
On cross-examination, Dr. Sonstein testified that he saw the claimant due to the tumor in his spine. An MRI revealed mild degenerative disc disease at all three levels of the thoracic spine. It is not unusual to see such degeneration in a 65 year old patient. A September of 2006 MRI of the lumbosacral spine indicated multi-level degenerative disc disease and L2-3, L3-4, L4-5 and L5-S1 disc bulging, global stenosis, a high grade at L4-5 and grade one L4-5 spondylolisthesis. The muscles around claimant's thoracic spine were weakened following the trauma associated with the tumor removal surgery. Claimant informed him at the initial office visit that he had low back pain. Claimant's low back pain was "unmasked" once the tumor was removed from his upper back. Dr. Sonstein did not recall if the claimant received any treatment for his low back injury prior to removal of the tumor. He examined the claimant's gun belt and cited it along with his driving in a patrol car for thirty to forty miles per day as causes of his lower back problem. He did not ask the claimant about any other activities that may have brought about his lower back condition. Claimant's low back condition did not entail any herniations, but did involve bulging and disc desiccation, and disc desiccation is not unusual in an individual the claimant's age.
In a reserved decision filed on October 21, 2010, the WCLJ determined that there was no relationship between the claimant's occupational back injury, and his retirement and directed no further action. The WCLJ opined that the claimant had been fully employed with his symptomatic back occupational disease, he expressed a strong desire to return to work as soon as the residuals of his spine tumor would allow him to do so, and these residuals formed the sole basis for the employer's conclusion that the claimant was permanently unfit for police duty.
"As a general rule, a withdrawal is not voluntary when there is evidence that the claimant's disability caused or contributed to the retirement" (Matter of Bury v Great Neck UFSD, 14 AD3d 786  [internal quotation marks and citations omitted]).
The Full Board finds, upon review of the evidence of record, that the claimant's compensable low back condition contributed to his decision to retire from his employment as a police officer effective May 26, 2007. The April 6, 2005, narrative report by Dr. Sonstein indicates that the claimant presented with a history of low back pain dating back three months (January 2005). The claimant's low back pain, therefore, was present prior to March 31, 2005, when he left work following the diagnosis of a thoracic tumor. Dr. Sonstein ultimately indicated, in his February 7, 2007, narrative report, that the claimant's low back condition is causally related and that the claimant can no longer work as a police officer as a result. Dr. Sonstein credibly testified that he advised the claimant to retire due to his causally related low back condition in February of 2007 and that his low back pain was "unmasked" once the tumor was removed from his thoracic spine on April 22, 2005. Dr. Sonstein also credibly testified that the claimant's thoracic tumor took precedence over the low back condition, which explains the delay in finding causal relationship for the low back and concluding that claimant could not return to work as a police officer because of it. The SIE's consultant did not offer any contrary evidence, stating in his December 19, 2008, IME-4 only that the claimant's low back condition is causally related to his duties as a police officer for the SIE and that there is no evidence that the claimant's symptoms are related to his thoracic spine surgery. While the commanding officer of the SIE's medical administration office testified that the police surgeon was of the opinion that claimant stopped working only due to the thoracic spine surgery, upper back injury and hypertension, and did not become aware of the claimant's compensable low back condition until July 11, 2006, the police surgeon's medical reports were never produced nor was the police surgeon scheduled to testify in this matter.
Accordingly, the WCLJ reserved decision filed on October 21, 2010, is REVERSED. The case is returned to the trial calendar for findings and awards not inconsistent with this decision.