Case # 80408249
Date of Accident: 04/08/2004
District Office: Buffalo
Employer: 774 UN Auto Airc & AGr
Carrier: Harleysville Ins Co. of NY
Carrier ID No.: W156509
Carrier Case No.: WO-558121
Date of Filing of Decision: 12/03/2012
Claimant's Attorney: Lipsitz, Green, Scime, Cambria LLP
Panel: Robert E. Beloten

The Full Board, at its meeting held on October 16, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on November 30, 2011.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claim should be amended to include a consequential low back injury.

The Workers' Compensation Law Judge (WCLJ) amended the claim to include a consequential back injury, authorized a functional capacity evaluation, and awarded temporary partial wage benefits.

The Board Panel majority modified the WCLJ's decision to rescind the amendment of the claim to include the low back, finding that the claimant had an altered gait prior to her work accident, and finding the carrier's consultant to be more credible. The Board Panel majority also made the wage awards tentative and sent the case back to the WCLJ for further evidence regarding proper awards.

The dissenting Board Panel member found that the WCLJ's decision should be affirmed in its entirety.

In the claimant's application for Mandatory Full Board Review, she argues that the medical evidence supports a finding that her gait was altered by her work injury, and this caused a consequential low back injury. The claimant asserts that the dissenting Board Panel member correctly found that the WCLJ's amendment of the claim should be affirmed.

In rebuttal, the carrier argues that the evidence does not support amendment of the claim to include the back because the claimant had pre-existing gait problems.

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

FACTS

The claimant, a pipefitter, suffered a foot injury on April 8, 2004, due to extensive walking through an airport after attending a union conference. The carrier did not controvert the claim, and it was established for a bilateral foot injury pursuant to a September 12, 2005, notice of decision.

Claimant underwent a bunionectomy and hammertoe release in her right foot in November 2005. Claimant underwent surgical repair of a hallux varus deformity in her right foot on March 20, 2006. As a result of the second surgery, claimant was directed to alter the manner in which she walked to avoid "ruining her operation," and was placed in a short-leg cast (April 14, 2006, report of Dr. Pochatko). After the cast was removed, claimant was directed to wear a post-op shoe and use crutches to walk (May 8, 2006, report of Dr. Pochatko).

In a February 27, 2008, proposed decision, which became final on March 28, 2008, the claimant was awarded a 70% schedule loss of use of the right great toe and the right second toe, as well as a 6 week protracted healing period.

Claimant began treating with Dr. Nasca, a podiatrist, on April 22, 2004. In an April 10, 2010, report, Dr. Nasca noted that claimant "has seen a chiropractor who is working with a limb length discrepancy."

The carrier objected to bills for treatment related to the claimant's lower back by Dr. Den Haese and, at a hearing on June 29, 2010, the WCLJ ordered the depositions of the claimant's treating physicians, Dr. Den Haese, and Dr. Nasca, and the carrier's consultant, Dr. Bauer.

Dr. Bauer did not testify. However, Dr. Bauer examined the claimant on June 18, 2010, and filed a report with the Board. The claimant complained of back pain since November 2009. Dr. Bauer noted that the claimant suffered from advanced degenerative disc disease of the cervical, thoracic, and lumbar spine. He diagnosed the claimant as suffering from lumbar radiculopathy, but opined that the claimant's "multilevel disc degeneration and herniation's are idiopathic in nature not having arisen from any particular injury or any particular treatment of the lower extremities." Dr. Bauer noted that the claimant's back problems were indicative of a generalized degenerative process and were not causally related to her work injury.

Dr. Den Haese, a neurosurgeon, testified by deposition on July 13, 2010, that he first treated claimant on January 4, 2010, at which time she complained of left-sided low back pain, which radiated down her left leg, into her foot. Dr. Den Haese received a history from claimant of having had low back pain since her foot surgeries. Claimant presented with an antalgic gate, favoring her left side. Dr. Den Haese testified that he believed that claimant developed an antalgic gate as the result of her foot surgery, which caused her back injury. Dr. Den Haese was not aware that claimant had a leg length discrepancy.

Dr. Nasca, a podiatrist, testified by deposition on July 21, 2010, that the claimant began having pain in the lower extremity in 2008. He stated that he was not qualified to render an opinion on whether the claimant's back problems were causally related to her work injury, but stated that her back problems are probably due to her foot injury. He also testified that he believes that the claimant had an altered gait in 2004, but he does not know whether she had the leg length discrepancy before her work injury. Dr. Nasca stated that the leg length discrepancy is usually caused by compensation for another injury, unless it is congenital.

In an amended reserved decision filed September 14, 2010, the WCLJ amended the claim to include a consequential low back injury, finding that the claimant's foot problem caused an abnormal gait, which led to the claimant's back problem. The WCLJ also authorized a functional capacity evaluation, and awarded temporary partial wage benefits.

LEGAL ANALYSIS

The courts have long recognized that a consequential injury is compensable, provided there is a sufficient causal nexus between the initial work-related injury for which a claim is established and the subsequent injury (see e.g. Matter of Barre v Roofing & Flooring, 83 AD2d 681 [1981]; Matter of Pellerin v N.Y.S. Dept. of Corrections, 215 AD2d 943 [1995], lv den 87 NY2d 806 [1996], Matter of Scofield v City of Beacon Police Dept., 290 AD2d 845 [2002]). "Whether a claimant's disability consequentially arose from injuries sustained in a previous accident is a factual issue left for resolution by the Board (see Matter of Scofield v City of Beacon Police Dept., 290 AD2d 845 [2002]; Matter of Trickel v Judski Assoc., 247 AD2d 778 [1998])."

The reports of Dr. Pochatko reflect that following the claimant's second right foot surgery in 2006, the claimant was directed to alter the manner in which she walked to avoid "ruining her operation," was placed in a short-leg cast, and subsequently directed to wear a post-op shoe and use crutches to walk. Dr. Den Haese testified that he believed the claimant's back injury was caused by an antalgic gate developed as the result of her foot surgery. At the time of Dr. Den Haese's initial examination, he noted that claimant walked with an antalgic gate, favoring her left leg.

While conflicting evidence on the issue of causal relationship has been submitted, the preponderance of the evidence in the record supports a finding that the claimant sustained a consequential low back injury.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on September 14, 2010, is AFFIRMED. No further action is planned by the Board at this time.