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 25, 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 her employment.
In a decision filed on November 1, 2010, the Workers' Compensation Law Judge (WCLJ) established the claim for a work-related low back injury on November 9, 2009, and directed the payment of awards at various rates for causally related lost time.
The Board Panel majority affirmed the WCLJ's decision.
The dissenting Board Panel member would find that the claimant's back condition was not causally related to her employment.
On December 22, 2011, the carrier filed an application for Mandatory Full Board Review, arguing that the claimant has not submitted substantial medical evidence of causal relationship and that the claim should be disallowed.
On January 3, 2012, the claimant filed a rebuttal, arguing that the claim should be established as the carrier waived its defenses pursuant to WCL § 25(2)(b) by not filing a form C-7 and that the record supports a finding that claimant's condition is causally related.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, a factory worker at an office furniture manufacturer, filed a C-3 (Employee Claim) on February 1, 2010, alleging that on November 9, 2009, she injured the lower part of her back while turning a unit around so that it was facing her.
On November 11, 2009, the claimant sought treatment at the emergency room of St. James Mercy Hospital. The emergency room report indicates that "the patient is a 49 year old female who has neck pain and numbness in both extremities for the last few days." The history further indicates that the onset of such pain "happened spontaneously at home." The report does not mention a work-related accident. The diagnosis listed in the ER report is cervical radiculopathy and herniated disk in the cervical spine.
On November 13, 2009, the claimant treated with Dr. Annabel. The C-4 report from that visit indicates that the claimant went to her usual work on November 9, 2009, and that after being there for a short time, she began to have neck and shoulder pain that cascaded down her back, into her low back. She began to not feel well generally. She became nauseated, vomited, and subsequently went home from work. It goes on to say that the claimant continued to have neck and arm pain, and numbness affecting all four extremities. Dr. Annabel further mentions that the claimant went to the ER on November 11, 2009, and that the formal report reads negative for disk herniation. Dr. Annabel also states that the claimant has degenerative disk disease with osteophyte formation at C5-6 with foraminal narrowing. In the note, Dr. Annabel further indicates that the claimant does not recall any acute injury.
The carrier initially filed a form C-669 dated February 23, 2010, which indicated only that the claimant had filed a claim for New York State Disability Benefits and was receiving them. The carrier subsequently filed an amended C-669 dated May 7, 2010, indicating that it had made temporary payments of compensation without prejudice and without accepting liability for the claim, pursuant to WCL § 21-a.
At the first hearing, held on May 11, 2010, the carrier's attorney indicated that the carrier was raising the issue of "accident within the meaning of the law" (Transcript, 5/11/10 Hearing, p. 2-3). The Workers' Compensation Law Judge (WCLJ) directed the matter to be set down for lay testimony concerning the controversy.
The carrier has never filed a form C-7 (Notice of Controversy) controverting the claim or a form C-8/8.6 indicating that it was ceasing the payment of benefits without prejudice.
The claimant testified on June 8, 2010, that she worked for the employer, touching up office furniture. The claimant testified that on November 9, 2009, she experienced pain in her back when switching and pulling a desk. The claimant indicated she felt ill and vomited. She first sought medical attention at an emergency room on November 11, 2009, and saw her treating physician, Dr. Annabel, on November 13, 2009. The claimant testified she advised her supervisor she was leaving but did not mention her back.
The claimant's supervisor testified that the claimant became sick at work on November 9, 2009, and was throwing up blood. He testified that she did not complain of back pain, and did not report that she had been injured in a work related accident prior to leaving work that day, or when she called in sick the next day. At some time later, either before or after Thanksgiving that year, she reported that she had been out of work due to a work-related back injury.
The first report from Dr. Annabel to mention a specific incident involving moving a piece of furniture is based on an August 17, 2010, examination. It indicates that during the process of rotating a work table 180 degrees the claimant felt a sudden stinging pain in her low back and in her right paraspinal muscles. The report further indicates that the pain was sufficiently intense enough that the claimant became nauseated, felt faint, and vomited.
Dr. Annabel testified on September 7, 2010, that he first examined the claimant on November 13, 2009, and diagnosed her with a work-related low back strain. Dr. Annabel acknowledged that his initial reports did not contain a history of specific work-related injury, and that his first report indicated that claimant did not recall suffering an acute injury. Dr. Annabel testified that in preparing to testify in this matter, he reviewed his November 13, 2009, report and realized that it did not contain a history of a work-related injury. He was "not satisfied" with his November 13, 2009, report insofar as it contained "no real description of a work-related injury" (Hearing Transcript, 9/7/10, p. 14), and therefore arranged a meeting with the claimant to clarify the history of her injury. At that meeting, claimant provided a history of a discrete work-related injury. When asked whether claimant provided that history during his initial examination on November 13, 2009, Dr. Annabel initially responded, "To the best of my recall she did" (id. at 11). However, he was later asked whether, prior to his recent meeting with the claimant, he had an independent recollection of claimant having provided a history of a discrete work-related injury, and responded, "I cannot remember that far back, I see 20 people a day" (id. at 12). Dr. Annabel suggested that claimant had provided a history of a discrete work-related injury during his initial examination on November 13, 2009, but that he had neglected to include that history in his report (id. at 11). He explained that he frequently dictates notes after seeing several patients, which could have resulted in an incomplete history in his November 13, 2009, report. Dr. Annabel acknowledged that his November 13, 2009, report and the November 11, 2009, emergency room report were consistent insofar as neither indicates that claimant sustained a discrete work-related injury. When asked whether "these reports make it difficult for you to say with reasonable medical certainty whether or not she had injury to her back at work," Dr. Annabel responded, "They do make it similarly difficult. There is obvious conflicts here [sic]" (id. at 24-25). However, "despite the controversies raised," Dr. Annabel was still of the opinion that claimant's lower back injury was the result of a work-related accident (id. at 29).
In a reserved decision filed on November 1, 2010, the WCLJ found the claimant's testimony was clear and credible that she suffered an injury to the low back on the date of accident while working with a large piece of office furniture. In addition, the WCLJ found that the testimony of Dr. Annabel that he received the same history from the claimant and that he believes that the claimant's low back condition was causally related to the November 9, 2009, work injury, to be credible. As a result, the WCLJ established a work related low back injury on November 9, 2009, and directed the payment of awards at various rates for her causally related lost time.
When an employer "is unsure of the extent of its liability for a claim for compensation by an injured employee pursuant to this chapter, such employer may initiate compensation payments and payments for prescribed medicine and continue such payments for one year, without prejudice and without admitting liability…" (WCL § 21-a). "An employer may cease making temporary payments of compensation and prescribed medicine if such employer delivers within five days after the last payment, to the injured employee and the board, a notice of termination of temporary payments of compensation on a form prescribed by the board." (WCL § 21-a). "The failure of an employer to provide the notice of termination, pursuant to subdivision three of this section, within one year of the commencement of temporary payment of compensation shall be deemed to be an admission of liability by the employer and the notice of temporary payment of compensation shall be converted to a notice of compensation payable" (WCL § 21-a).
When an employer or carrier ceases making payments without prejudice pursuant to WCL § 21-a, it must file with the Board "within five days after the last payment, a notice of termination of payments of temporary compensation on form C-8/8.6" (12 NYCRR 300.22[d]). "If the employer or carrier is now controverting the claim, it shall file form C-7 simultaneously with form C-8/8.6 or within 10 days after delivery of form C-8/8.6" (id.).
"If the employer or carrier does not deliver a notice of termination on form C-8/8.6 to the Board within one year from the commencement of payment of temporary compensation and/or prescribed medicine, the employer or carrier shall be deemed to have admitted liability for the claim, and a decision shall be issued establishing the claim" (12 NYCRR 300.22[d]).
Although the carrier's attorney, at the hearing on May 11, 2010, indicated that the carrier was raising the issue of "accident within the meaning of the law," the carrier has never filed a form C-7 controverting the claim or a form C-8/8.6 indicating that it was ceasing the payment of benefits without prejudice, as required by (12 NYCRR 300.22[d]). Insofar as more than one year has passed since filing of the carrier's amended C-669 dated May 7, 2010, indicating that it was making temporary payments of compensation without prejudice, the carrier is deemed to have admitted liability for this claim (WCL § 21-a), and the Board is required to issue a decision "establishing the claim" (12 NYCRR 300.22[d]).
Therefore, the Full Board finds that the carrier, by failing to follow the requirements set forth WCL § 21-a and12 NYCRR 300.22, has admitted liability for this claim.
Accordingly, the WCLJ decision filed on November 1, 2010, is MODIFIED to find that this claim established for an injury to the claimant's back resulting from a November 9, 2009, accidental injury arising out of and in the course of his employment, based on the carrier's admission of liability for this claim pursuant to WCL § 21-a(4). The decision is in all other respects affirmed. No further action is planned at this time.