The Full Board, at its meeting on November 14, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on November 22, 2011.
The issue presented for Mandatory Full Board Review is whether the claimant was injured in an accident arising out of and in the course of employment.
The Workers' Compensation Law Judge (WCLJ) established the case for a work-related injury to the claimant's back and made awards.
The Board Panel majority affirmed the WCLJ's decision.
The dissenting Board Panel member would find that the claim is barred by Workers' Compensation Law (WCL) § 18, and that there is insufficient evidence in the record to support establishment of the claim.
On December 20, 2011, the carrier filed an application for Mandatory Full Board Review, arguing that the evidence in the record does not support establishment of the claim for a work-related accident.
On December 29, 2011, the claimant filed a rebuttal, arguing he gave oral notice to his supervisor and that the claim should be established for a work-related accident.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, then a 41 year-old assembly/factory worker, filed an undated C-3 (Employee Claim), received by the Board on December 8, 2010, wherein he indicated that on September 20, 2010, at 10:00/11:00 a.m., he had finished assembling a 300-pound cabinet when, while picking it up, he felt a sharp pain in his back. The claimant indicated that he had an injury to the lower back, with pain into his right leg and a pinched nerve in his disc.
The claimant filed a second form C-3, dated December 3, 2010, wherein he indicated that on September 17, 2010, at 10:00 a.m., he was carrying a heavy chalkboard with a co-worker and, when he bent over to place it onto a skid, he felt pain in his back and right leg.
There is a "Progress Note" in the Board file dated September 19, 2010. (CIS Doc ID # 183271380 filed 7/13/11). It indicates that the claimant came in complaining of "pain from lower back which radiates to R. calf for about 1 month." The note indicates that claimant "denies trauma." The diagnosis is right leg pain and scoliosis. On the flip side of this document are copies of prescription slips from Dr. Canavire-Weber, DO, that refer the claimant to radiology for a scoliosis series x-ray for back pain and right leg sonogram with doppler for calf pain. A third prescription slip states that "[t]his patient does not have medical insurance. Please help him." Nowhere in this document does it indicate that the claimant suffered trauma or an accident at work.
Two medical records dated September 23, 2010, from BAB Radiology (Dr. Beuchert) were filed with the Board. Both reports are addressed to Dr. Canavire-Weber and consist of imaging reports for a "Scoliosis Series" and a "Right Lower Extremity Venous Doppler." The report for the Scoliosis Series indicates an impression of mild S-shaped rotoscoliosis with degenerative disc disease and possible muscular spasm. The report for the Right Lower Extremity Doppler indicates an impression of no evidence of deep vein thrombosis. Neither report mentions a work accident. However, they reference a referral from Dr. Canavire-Weber, the claimant's primary care physician.
In a C-4 report dated October 25, 2010, Dr. DeWal diagnosed claimant with lumbar disc displacement without myelopathy, sciatica and thoracic/lumbar radiculopathy, which was caused by lifting a heavy bulletin board at work on September 20, 2010. This is the first report to contain a history of a work-related injury.
In a series of C-4 reports covering the period from February 8, 2011, to April 27, 2011, the claimant's primary care physician, Dr. Canavire-Weber, diagnosed the claimant with a lumbar sprain and opined that the claimant had a 100% impairment due to a work-related injury which occurred on September 20, 2010.
Dr. Canavire-Weber testified on April 13, 2011, that she examined the claimant on February 8, 2011. Dr. Canavire-Weber stated that the claimant indicated he was lifting up a slab of porcelain and wood with a co-worker on September 20, 2010, when he felt a strain on his lower back. Dr. Canavire-Weber diagnosed the claimant with lumbar radiculopathy. Dr. Canavire-Weber opined that the claimant had a 100% disablement. Dr. Canavire-Weber confirmed that the claimant mentioned a previous accident on March 22, 2006. Prior to February 8, 2011, the claimant was seen by the physician assistant in her office. Dr. Canavire-Weber had the physician assistant's notes available to her. The notes indicated that the physician assistant saw the claimant on September 19, 2010, when the claimant came in with complaints of pain in his lower back which radiated to his right leg, which he had experienced for the past month. The notes further indicated that the claimant was sent for imaging studies on September 20, 2010. The claimant came back to see the physician's assistant on September 26, 2010, to get the results of imaging studies. The x-ray of the claimant's back indicated a mild S-shaped rotoscoliosis with degenerative disc disease and possible muscle spasm. The sonogram of the claimant's right leg revealed no evidence of deep vein thrombosis. The claimant was referred to an orthopedic surgeon, Dr. DeWal at Long Island Spine Specialists. Dr. Canavire-Weber acknowledged that degenerative disc disease would not be considered acute but that a muscle spasm could be considered acute. She also stated that if the claimant had prior asymptomatic degenerative disc disease, a lifting incident could aggravate the condition.
Dr. DeWal testified on April 25, 2011, that he first examined the claimant on October 25, 2010. Dr. DeWal stated that an MRI revealed a herniated disc at L4-5, as well as a central disc herniation at L5-S1. Dr. DeWal confirmed his opinion that the herniation was causally related to the lifting incident that occurred in September 2010. Dr. DeWal opined that the claimant could not work. Dr. DeWal acknowledged that he was not aware that the claimant had an injury in 2006. Dr. DeWal acknowledged that the claimant does have degenerative disc disease. Dr. DeWal indicated that his opinion on causal relationship was not changed because the incident at work could have exacerbated a condition that may have occurred previously. Dr. DeWal stated that the claimant's foot drop seemed to have resolved by the December 28, 2010, examination.
In a series of C-4 reports covering the period from January 7, 2011, to January 26, 2011, the claimant's attending pain specialist, Dr. Abbasi (also of Long Island Spine Specialists), diagnosed the claimant with lumbar disc displacement without myelopathy, sciatica, thoracic/lumbar radiculopathy, and partial foot drop, and opined that the claimant had a 100% temporary impairment.
Dr. Abbasi testified by deposition on April 26, 2011, that he first saw the claimant on January 7, 2011. Dr. Abbasi indicated that the claimant reported symptoms after lifting a cabinet at work. Dr. Abbasi diagnosed the claimant with lumbar disc displacement without myelopathy, sciatica, thoracic/lumbar radiculopathy, partial foot drop, and some scoliosis as well. Dr. Abbasi opined that the claimant had a temporary total disability. Dr. Abbasi stated that the claimant had symptoms after lifting a cabinet at work, and that would indicate a causal relationship. Dr. Abbasi indicated that the claimant did mention a prior back injury from 2006. An MRI from December 15, 2010, revealed two herniations at L4-5 and L5-S1 that appeared new. Dr. Abbasi confirmed that there was some degeneration in the back which could possibly be a result of a prior injury. Dr. Abbasi treated the claimant with epidural injections.
In a report dated February 7, 2011, the carrier's consultant, Dr. Miller, diagnosed the claimant with a lumbar spine sprain/strain and opined that the claimant had a mild partial disability and that the claimant was capable of working with restrictions of no repetitive bending or lifting of more than 30 pounds. Dr. Miller noted that there were no medical records from September 2010, and he indicated that he could not establish causal relationship between the accident of record and the reported injuries.
Dr. Miller testified by deposition on April 27, 2011, that he examined the claimant on February 7, 2011, at which time the claimant reported that he was lifting a bulletin board on September 20, 2010, when he hurt his lower back. Dr. Miller diagnosed the claimant with a sprain of the lumbar spine. Dr. Miller opined that the claimant had a mild partial disability and that the claimant was capable of working with restrictions on repetitive bending and lifting over 30 pounds. Dr. Miller indicated that he could not comment on causal relationship because there was no definitive evidence of when the claimant really got hurt. Dr. Miller indicated that the first medical report is dated October 25, 2011, and the accident was apparently before that. Dr. Miller stated that causal relationship is questionable in the case, by the history from the claimant. Dr. Miller conceded that the findings with respect to the claimant's back condition are consistent with a newer injury.
The claimant testified via a translator on February 25, 2011, that he last worked on November 16, 2010. On September 20, 2010, the claimant was picking up a marker board and felt pain in his lower back. A friend gave him some pills, and he continued to work. The claimant went to Dr. Canavire-Weber on the day of the incident (Transcript, 2/25/11, pp. 7-8). The claimant went to the hospital on November 17, 2010. He also saw Dr. Abbasi. The claimant told his supervisor about the accident on the day that it happened. The claimant stated that he hurt his back in 2006 while lifting a cabinet for the same employer. A co-worker who was helping the claimant lift the board saw the claimant get hurt but asked that the claimant not identify him.
The claimant's supervisor testified on February 25, 2011, that the claimant has worked for the employer for five or six years. In November 2010, the claimant brought in paperwork from a hospital indicating he had problems with his back and that he could not lift certain amounts of weight. There was nothing in the papers that indicated the claimant's problem was work related. The supervisor acknowledged that the employer has a copy of a report from Long Island Spine Specialists and that there was nothing on that form indicating a work-related problem. The supervisor stated that he was working on September 20, 2010, and was making rounds on the factory floor. The claimant did not report an injury to him on that date. The employer manufactures bulletin boards, chalk boards, and marker boards. There are 25 to 30 assemblers and packers. The workforce is mixed and has Spanish-speaking people. The claimant told him about his work-related injury about two months after it happened. The claimant did not report an injury in September. The claimant explained he was making a board and when he moved it to the table, he got hurt.
At the hearing held on July 13, 2011, the WCLJ established the claim and found that the claimant gave his supervisor notice of the injury and the employer was not prejudiced. In the resulting decision, filed on July 20, 2011, the WCLJ found that the claimant had a work-related injury to the back, found no compensable lost time from September 21, 2010, to November 17, 2010, awarded compensation at various rates from November 17, 2010, to July 13, 2011, and directed the carrier to continue payments at a $225.00 per week temporary partial disability rate.
Although WCL § 21(1) affords claimants the presumption that unwitnessed or unexplained accidents that occur in the course of employment also arise out of that employment, "that statute does not wholly relieve [a claimant] of the burden of demonstrating that the accident occurred in the course of, and arose out of, … employment" (Matter of Bond v Suffolk Transp. Serv., 68 AD3d 1341  [citations omitted]). Thus, the presumption cannot be used to show that an accident occurred (Matter of Fedor-Leo v Broome County Sheriff's Dept., 305 AD2d 760 ). In this regard, a credibility determination must be made, and the Board is not bound to credit the testimony of the claimant (Matter of Wood v Colonial Tavern & Rest., 22 AD2d 984 , lv denied 15 NY2d 486 ).
The claimant testified that he injured his back at work on September 20, 2010, and was treated at the office of Dr. Canavire-Weber on the date of the accident. However, the record does not contain a report from Dr. Canavire-Weber's office dated September 20, 2010. The record does contain a note dated September 19, 2010, from Dr. Canavire-Weber's office which indicates that claimant had been experiencing pain in his lower back, radiating down his right leg, for about one month, and that he "denies trauma." The note does not make any mention of a work-related injury. The first medical report to offer a history of a work-related injury is the October 25, 2010, report of Dr. DeWal, based on examination performed more than a month after claimant's alleged injury.
Moreover, the initial medical report in the record failed to provide a history of a work-related injury and indicated that claimant denied suffering any trauma and had been experiencing back pain for approximately one month.
Based upon a review of the record and the preponderance of the credible evidence, the Full Board finds that claimant's back injury was not caused by a work-related accident on or about September 20, 2010.
Insofar as the record supports a finding that the claimant did not sustain a work-related injury, it is unnecessary to address the issue whether claimant provided timely notice pursuant to WCL § 18.
Accordingly, the WCLJ decision filed on July 20, 2011, is REVERSED. The claim is disallowed.