Case # 80803942
Date of Accident: 03/25/2008
District Office: Buffalo
Employer: Walmart Associates
Carrier: Illinois National Ins Co
Carrier ID No.: W112254
Carrier Case No.: 5508303
Date of Filing of Decision: 01/10/2013
Claimant's Attorney: Jerry A. Gambino Attorney-at-Law
Panel: Robert E. Beloten

The Full Board, at its meeting held on November 14, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on March 9, 2012.

ISSUES

The issues presented for Mandatory Full Board Review are:

1. whether Workers' Compensation Law (WCL) § 18 bars the claim for a low back injury; and
2. whether there is sufficient medical evidence in the record to amend the claim to include a causally related back injury.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim for a back injury based on the claimant's failure to provide timely notice of his injury to the employer, and based on the lack of credible evidence to support a finding of causal relationship.

The Board Panel majority affirmed the WCLJ's decision, finding that the claimant did not provide notice of a back injury to his employer within 30 days, as required by WCL § 18. The Board Panel majority further found that the claimant failed to show that his failure to timely notify the employer of his back injury was not prejudicial to the employer. The Board Panel majority also found that the medical evidence in the record is insufficient to find that claimant has a causally related low back injury.

The dissenting Board Panel member would have amended the claim to include a low back injury. First, the dissenting member found that "the claimant's failure to provide timely written notice of his back injury should be excused based on the employer's actual knowledge of the incident which allegedly caused that injury and because its ability to timely investigate the circumstances of the accident was not impeded." Second, the dissenting member found that the claimant's failure to seek immediate treatment for his back injury was not unreasonable because he explained during his testimony that he "only sought treatment for it once the pain was not masked by pain medication for his primary injuries and became too severe."

In his application for Mandatory Full Board Review filed on March 27, 2012, the claimant argues that WCL § 18 does not bar the claim for a back injury because the employer had actual knowledge of the incident which caused the injury and had the ability to timely investigate the accident. The claimant also argues that the self-insured employer (SIE) has not provided any evidence to contradict the credible testimony of the claimant and his chiropractor and that the claimant's back injury is causally related to the accident.

In a rebuttal filed with the Board on April 25, 2012, the SIE requests that the Board Panel majority decision be affirmed in its entirety. The SIE argues that the claimant failed to provide the employer with timely notice of the alleged back injury as required by WCL § 18, and argues that the credible evidence in the record does not support amending the claim to include a back injury.

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

FACTS

While working at Wal-Mart on March 25, 2008, the claimant injured his right arm and both shoulders during two separate incidents: the first, while helping a co-worker lift a television and the second while taking a bicycle off a rack. He was diagnosed with a right bicep tendon rupture and strain/impingement of both shoulders. This claim is established for injuries to both shoulders and the right arm resulting from the two separate incidents on March 25, 2008 (see proposed decision filed August 25, 2008, and WCLJ decision filed October 31, 2008).

On November 25, 2008, the claimant's attorney submitted a letter to the Board to report that the claimant is also claiming that he injured his back in the accident at work on March 25, 2008, while he was lifting a bike.

Neither claimant's C-3 (Employee Claim), nor the employer's C-2 (Employer's Report of Work-Related Accident/Occupational Disease), mentions a back injury.

The claimant initially received treatment for his injury on March 31, 2008, with Dr. Dilamarter, his family physician. In the resulting C-4 report, Dr. Dilamarter provided a history of the claimant lifting a heavy object at work. In the attached "progress note," the doctor noted that the claimant complained of injuring his right arm. Dr. Dilamarter diagnosed a ruptured biceps tendon (right), and left shoulder strain, causally related to lifting a heavy object at work.

Dr. Rehmatullah, the SIE's consultant, submitted an IME-4 of an examination on October 7, 2008, and noted that the claimant reported that while he was at work on March 25, 2008, he felt a pop in his right arm and shoulder as he was taking a big screen TV off a shelf, and later the same day, he was trying to lift a bike and his right arm gave out and he hurt both shoulders. Dr. Rehmatullah diagnosed causally related bilateral shoulder impingement syndrome, and right biceps rupture.

There is no evidence that the claimant sought treatment for a back injury until November 21, 2008, when Dr. Denecke, the claimant's treating chiropractor, initially treated the claimant. In a C-4 report of treatment on November 21, 2008, November 28, 2008, and December 1, 2008, Dr. Denecke noted that the claimant reported that he was injured on March 25, 2008, when he lifted a heavy object at work and "felt pain in his arm and shoulders." Dr. Denecke diagnosed causally related lumbar sprain/strain, lumbar radiculitis, and sacral segmental dysfunction.

The claimant testified at the hearing held on August 10, 2009, that he hurt his shoulders and back at work lifting a bicycle. He was experiencing back pain after that incident and reported it to a manager with his other injuries and prepared incident reports within ten days of the accident. However, he conceded that none of the reports, including his C-3, reference a low back injury. He first sought treatment for his injuries with Dr. Dilamarter, at which time he reported his back injury. However, Dr. Dilamarter did not treat his back injury when he first reported it because he told him that "we'll take one thing at a time" (Hearing Transcript, 8/10/09, p. 6). Dr. Dilamarter referred him to Dr. Callahan for treatment of the right biceps injury. The claimant also advised Dr. Callahan of his back injury, but received no treatment for it because Dr. Callahan also told him that they "were going to do one thing at a time" (Hearing Transcript, 8/10/09, p. 8). The claimant also explained that he was on pain medication for his arm and shoulders, which treated his back as well. He also claimed that he told the SIE's consultant that he had injured his back and did not know why it was not mentioned in the IME-4 report.

Dr. Denecke testified by deposition on August 25, 2009, that there was a causal relationship between the claimant's low back injury and the accident at work. Dr. Denecke's opinion of causal relationship is based on the claimant's description that he felt discomfort in both shoulders and down his low back after lifting a bicycle at work, his own objective findings on examination, and the claimant's subjective complaints when he first presented on November 21, 2008. The claimant had been out of work from November 8, 2008, until December 6, 2008, with a temporary total disability. He was released to return to work with light duty work restrictions on December 6, 2008. Dr. Denecke explained that the claimant may have waited eight months before seeking treatment for his back complaints because, like many people, he may have thought his back pain would go away.

The parties submitted written summations and in a reserved decision filed on April 15, 2010, the WCLJ disallowed the claim for a back injury based on the claimant's failure to provide timely notice of his injury to the employer, and based on the lack of credible evidence to support a finding of causal relationship. The WCLJ explained that "the reports claimant prepared for the employer, three within 10 days of the accident, all lack any mention of a claim for a low back injury." The WCLJ further noted that prior to Dr. Denecke's examination on November 21, 2008, there is no evidence that the claimant reported any history of a back injury to his doctors.

The WCLJ found that "[i]t is not credible that the claimant was able to have back pain for eight months and receiving medical treatment and none of the doctors would report back complaints." The WCLJ further found that "the claimant has not shown that the employer was not prejudiced by the lack of timely notice of the injury to the back."

LEGAL ANALYSIS

Notice

WCL § 18 requires that a claimant give written "[n]otice of an injury or death for which compensation is payable under this chapter … to the employer within thirty days after the accident causing such injury" [emphasis added]. However, a claimant's failure to provide written notice of an injury within thirty days can be excused on several grounds, including "the ground that the employer, or his or its agents in charge of the business in the place where the accident occurred or having immediate supervision of the employee to whom the accident happened, had knowledge of the accident or death" [emphasis added].

In the present case, it is conceded that claimant did not provide timely written notice of his back injury within 30 days of the March 25, 2008, accident which allegedly caused it. However, it is not disputed that the claimant had an accident at work on March 25, 2008, that occurred while he was taking a bike off a rack. While claimant did not advise his employer that he sustained a back injury as a result of the March 25, 2008, accident until November 25, 2008, the employer certainly had "knowledge of the accident" which allegedly caused that injury on the date it occurred. Therefore, claimant's failure to provide timely written notice of his back injury should be excused based on the employer's actual knowledge of the incident which allegedly caused that injury.

The purpose of the notice requirement imposed by WCL § 18 is "to give an employer the opportunity to investigate the circumstances of the claim" (Matter of Bloomfield v November, 219 NY 374 [1916]). When, as in the present case, the employer is aware of the accident which caused the claimant's alleged injury, the employer's ability to timely investigate the circumstances of the accident is not impeded.

Therefore, the Full Board finds that WCL § 18 does not bar this claim from being amended to include a back injury.

Causal Relationship

Notwithstanding the issue of notice, "[i]t [i]s claimant's burden to establish a causal relationship between his employment and his disability by competent medical evidence (see Matter of Sale v Helmsley-Spear, Inc., 6 AD3d 999 [2004]; Matter of Keeley v Jamestown City School Dist., 295 AD2d 876 [2002]). To this end, a medical opinion on the issue of causation must signify 'a probability as to the underlying cause' of the claimant's injury which is supported by a rational basis (Matter of Paradise v Goulds Pump, 13 AD3d 764 [2004]; see Matter of Van Patten v Quandt's Wholesale Distribs., 198 AD2d 539 [1993]).'[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship' (Matter of Ayala v DRE Maintenance Corp., 238 AD2d 674 [1997], affd 90 NY2d 914 [1997]; see Matter of Zehr v Jefferson Rehab. Ctr., 17 AD3d 811 [2005])" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 [2008]). A finding of causal relationship "must not rely on a speculative medical opinion" (Matter of Spinnato v GE Advanced Materials, 95 AD3d 1466 [2012]).

Here, although the claimant testified that he reported his back injury to both Dr. Dilamarter and Dr. Callahan, there is no documentation in the record to support the claimant's testimony, and there is no evidence that the claimant sought any treatment for a back injury until November 21, 2008, when Dr. Denecke provided his initial treatment. Although Dr. Denecke opined that the back injury was causally related to the March 25, 2008, accident, his opinion is not reliable since there is no contemporaneous medical evidence in the record to support the claimant's report of injury to his back on March 25, 2008 (see Matter of Spinnato v GE Advanced Materials, 95 AD3d 1466 [2012]). Further, the claimant provided inconsistent testimony to explain why he did not receive treatment for his back injury until eight months after the accident. He initially testified that he did, in fact, report his back pain to both Dr. Dilamarter and Dr. Callahan, but neither of those doctors recorded his complaints since both doctors told him that his other injuries would be treated first. However, later in his testimony he stated that the reason he did not receive treatment was that he was on pain medication for his arm and shoulders, which treated his back as well. Nevertheless, neither of these explanations is consistent with Dr. Denecke's explanation that the claimant thought his back pain would go away.

As such, there is insufficient credible evidence in the record to support Dr. Denecke's opinion that the claimant's back injury is causally related to the accident that occurred on March 25, 2008.

Therefore, the Full Board finds that the claim should not be amended to include a causally related back injury.

CONCLUSION

Accordingly, the WCLJ reserved decision filed on April 15, 2010, is MODIFIED to find that WCL § 18 does not bar this claim from being amended to include a back injury. The claim for a causally related back injury is disallowed because there is insufficient credible evidence in the record to find that the claimant's back injury is causally related. The rest of the WCLJ decision remains in effect. No further action is planned by the Board at this time.