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 November 2, 2011.
The issue presented for Mandatory Full Board Review is whether the record contains sufficient evidence to establish this claim.
In a decision filed on September 13, 2010, the Workers' Compensation Law Judge (WCLJ) established this case for repetitive injuries resulting in injury to the neck, back, irritable bowel syndrome, osteoporosis, myofascial pain syndrome, celiac disease, and heart disease with a date of accident as September 29, 2009, and made awards.
The Board Panel majority reversed and disallowed the claim.
The dissenting Board Panel member would have affirmed the WCLJ's decision.
The claimant filed an application for Mandatory Full Board Review on November 17, 2011.
The carrier filed a rebuttal on December 17, 2011.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This is a controverted claim for injuries involving the claimant's back, neck, and irritable bowel disease. The claimant filed a C-3 form on November 13, 2009, and claimed he suffered occupational diseases to his back, neck, and irritable bowel syndrome as a result of his duties as a parking attendant for 30 years, which duties included running up and down cement ramps, getting in and out of cars, and pulling items up and down. The carrier filed C-7 and PH-16.2 forms noting its intent to controvert this matter.
On March 3, 2010, the Board received a September 21, 2009, Cardiovascular Catheterization Comprehensive Report from Columbia University Medical Center. This report listed Dr. Shivdasani as the claimant's referring doctor. This report indicated the claimant has a single vessel coronary artery disease and a left ventricular systolic dysfunction. On September 21, 2009, the claimant underwent a successful drug eluting stent of the first diagonal. This report did not indicate that the claimant's heart condition was related to the claimant's work activities.
On April 1, 2010, the claimant filed Dr. Holstein's March 25, 2010, narrative report where Dr. Holstein stated the claimant was under his care with diagnoses of "cervical and lumbar radiculopathy secondary to multiple disc protrusions, thoracic spinal fractures caused by spinal trauma as a garage attendant." Dr. Holstein stated the claimant is a parking garage attendant, whose duties include getting in and out of cars, running up and down ramps, climbing in and out of car windows, and pulling down iron gates. Dr. Holstein further stated the garage did not provide the claimant with a bathroom facility.
At the initial hearing held on April 1, 2010, the WCLJ found medical evidence existed to continue this case and scheduled the next hearing for May 7, 2010, for lay witness testimony. In addition to this direction, the WCLJ directed the carrier to submit Dr. Holstein's and Dr. Shivdasani's deposition transcripts by May 27, 2010.
The carrier had the claimant examined by its consultant, Dr. Singh, on April 16, 2010. Dr. Singh received a history that the claimant worked as a parking garage attendant for about 31 years and that the claimant developed back and neck pain about six years ago, at which time the claimant was provided pain relievers by a doctor. The claimant further told Dr. Singh that the pain worsened over time and on one night about four years ago, was told by a doctor that he had fractured toes. The claimant indicated that his condition continued to worsen and that he developed back and neck pain and numbness and tingling of his feet. Dr. Singh was advised that the claimant underwent heart surgery on September 21, 2009, and has not returned to work. Following an examination, Dr. Singh found the claimant has severe osteoporosis, osteoarthritis, and degenerative disc disease of the cervical, thoracic and lumbar spine, bladder problems and G.I. syndrome. Dr. Singh opined that none of the claimant's conditions are causally related to the claimant's job.
On May 6, 2010, the claimant submitted Dr. Shivdasani's March 25, 2010, narrative report in which Dr. Shivdasani found that the claimant's multilevel herniations in the neck and back are causally related to the claimant's job duties of getting in and out of car doors and windows, running up and down a cement ramp, and pulling down iron gates while working as a parking attendant for 37 years.
On May 7, 2010, the claimant testified as follows: He started working for his employer in 1975 and ran a one-man parking garage for 26 to 28 years. He worked an eight-hour shift. The parking garage had two levels. The garage could hold 100 cars. On average, about 20 to 22 came into the garage at night, and he would have to let out 70 to 80 cars a day. The garage floors were made of cement. To get up from and down to the basement, he walked very quickly on the garage ramp or climbed stairs. Sometimes the cars were parked very tightly, so that he had to climb through the car windows about two to seven times a day, or he would place the car in neutral and pull the cars out of the spot. On average, he had to walk about 40 feet to get to a parked car from the garage entrance. The garage did not have a bathroom and if the claimant wished to relieve himself, he used a drain in the floor. The garage vents which were in place to get the carbon dioxide out were not working some of the time. He noticed the vents were not working at one point in time during 2008 when dust from a construction project next door did not leave the garage. He did not eat at work because he developed stomach problems about ten years ago, which condition worsened over time. He went to Dr. Coleman when his stomach problems began and Dr. Coleman diagnosed him with irritable bowel syndrome which caused him to have a little bit of colitis. This caused him not to be able to hold his food. He later found out he was allergic to certain foods, including wheat. He did not have a lunch or any other breaks because he was the only person working at the garage. In addition, his began having back pain about five years ago and began having neck pain about three years ago. He stopped working on September 29, 2009, after going to his doctor's office for his back and stomach problems. He learned that he was having a heart attack and had stents placed in him that day. His doctor has not allowed him to return to work.
Following the claimant's testimony, the WCLJ continued the trial to August 18, 2010, to complete the lay witness testimony. Further, pursuant to the carrier's consultant's opinion, the WCLJ directed the carrier to produce Dr. Singh's deposition transcript by August 9, 2010.
Dr. Holstein, the claimant's neurologist, provided deposition testimony on May 5, 2010, and testified as follows: He examined the claimant one-time on August 5, 2009, and received a history that the claimant was having back, neck, and chest pain radiating down into his leg and arms. The claimant also reported tingling and numbness in his toes and fingers. A review of the claimant's July 2009 MRI scans revealed the claimant had multiple disc protrusions and interior wedging of the thoracic vertebrae that were compression fractures. An examination revealed the claimant had tenderness in the thoracic spine, decreased sensation in the toes, restricted range of motion and spasms in the cervical and lumbar spines. Following the examination and a review of the MRI scans, he concluded the claimant had cervical and lumbar radiculopathy secondary to multiple disc protrusions and spinal trauma with thoracic spinal fractures. He opined that the claimant's conditions were caused by the claimant's repetitive trauma because the claimant, as a parking lot attendant, had to move cars and would have to bend in awkward positions in and out of windows and cars. He was not aware how long the claimant worked in the parking garage, but believed the claimant had worked in the garage for ten years. He was aware the claimant had back pain for about ten years. He did not ask the claimant about any other possible accidents or if the claimant had a history of performing physical labor outside of work.
Dr. Shivdasani, the claimant's internist, provided deposition testimony on May 5, 2010, and testified as follows: He first treated the claimant in June 2009 for neck, back, abdominal, musculoskeletal, stomach, and chest pain. The claimant provided a history of working as a parking garage attendant for the last 37 years. Following his initial examination, he diagnosed the claimant with significant malnourishment and significant possible osteoarthritis or osteoporosis and/or malabsorption syndrome. Prior to forming an opinion regarding causation, he had the claimant undergo a full MRI scan of the spine. The MRI findings revealed: significant diffuse degenerative changes with avulsion of bone in the claimant's cervical spine; diffuse degenerative changes with multiple herniated discs and disc damage in the claimant's thoracic spine, and retrolisthesis and disc desiccations at multiple levels with herniations and spinal canal stenosis in the claimant's lumbar spine. He related the MRI scan findings to chronic overuse, injury from positioning, and manipulation in the claimant's work environment. The claimant also had heart problems, but it would be hard to say if the claimant's cardiac condition was directly related to the claimant's work, but he was sure the claimant's work contributed to the heart condition to some extent because the claimant had a stressful job. The findings in his last examination of the claimant were consistent with evidence of osteoporosis, a significant type of scoliosis, and herniated discs. After the last examination, he found that significant spinal disorder could be related to the claimant's 37 years of working as a parking garage attendant because of all the maneuvering the claimant had to do to get in and out of cars from car windows and small cramped spaces, the claimant's climbing up and down the cement ramp, and climate temperature changes. He did not ask the claimant if he had been involved in any prior motor vehicle accidents or if the claimant performed physical labor outside of work. The claimant's malnutrition is related to the claimant's lack of access to bathroom privileges at his work, and the malnutrition could cause an imbalance in the claimant's GI tract and the claimant could have developed a nervous bowel causing some malabsorption syndrome. He was not aware of the claimant's eating habits prior to going to work. He was not aware if the claimant had any prior back problems.
The carrier's consulting neurologist, Dr. Singh, provided deposition testimony on July 23, 2010, and testified as follows: He examined the claimant on April 16, 2010, and received a history from the claimant that the claimant worked as a parking garage attendant for about 30 years and that the claimant developed gradually progressive pain in the neck and lower back over the last six years. The claimant stated that he felt numbness and tingling in his hands and feet about six years ago and continued to have disc pain which gradually increased. The claimant further stated that about four years ago, the claimant felt cold in his foot and went to see a doctor whom advised the claimant that the claimant has fractures in his toes. He believed the claimant had some kind of cardiac surgery on May 31, 2009. He examined the claimant's cervical, thoracic, and lumbar spines. The claimant had limited movements and tenderness in the neck and back. Following his examination, he diagnosed the claimant with osteoarthritis degenerative disc disease of the cervical and lumbar spines with scoliosis in the thoracic spine with a past history involving heart disease, irritable bowel syndrome, and ulcerative colitis. He did not relate the claimant's conditions to the claimant's constant walking around in a parking lot and not having immediate access to a bathroom. Rather, the claimant has a basic medical problem of osteoarthritis with scoliosis and that the claimant's colitis is related to the scoliosis. He was not aware the claimant had to climb through car windows to get in and out of some cars. Repetitive work activities could not aggravate or exacerbate the degenerative disc disease found in the claimant's MRI scans and that the disc disease found in the claimant is appropriate for the claimant's age. Despite his opinion on causality, he found the claimant is totally disabled based upon the claimant's neck and back pain, the claimant's numbness and tingling it the hands and feet, the claimant's cardiac condition, stomach problems, and the claimant's memory loss.
The employer's Human Resources Manager testified at the August 18, 2010, hearing. He testified that he has only spoken to the claimant by phone and had never met the claimant in person. On September 28, 2009, the claimant filed a request for family medical leave time along with a disability claim for a heart condition, coronary heart disease. He first learned the claimant was claiming work injuries about four to five weeks after the claimant filed the request for family medical leave when the claimant's son called him. He has never been in the parking lot where the claimant worked. He is aware that parking garage attendants have to, on occasion, climb through car windows to get in and out of cars. Parking garage attendants are not allowed to leave the parking facility, but can go to an approved facility to use the bathroom. He was not aware the bathroom facility that the claimant was allowed to use was seven blocks away from the parking garage. The employer's Human Resources Manager provided a copy of the claimant's request for family medical leave signed by the claimant and Dr. Shivdasani on September 30, 2009. This form lists the medical facts as cardiac procedures, coronary stenting, coronary intervention, physical rehabilitation for herniated discs, osteoporosis, malnutrition, and malabsorption syndrome.
Following summations made at the September 8, 2010, hearing, the WCLJ established the case for a repetitive injury to the claimant's neck, back, irritable bowel syndrome, osteoporosis, myofascial pain syndrome, celiac disease, and heart disease with a date of accident of September 29, 2009. The WCLJ set the claimant's average weekly wage at $1,381.05 and directed awards from September 29, 2009, to September 9, 2010, and continuing at a temporary total disability rate of $600.00 per week. The claimant's attorney was awarded a fee in the amount of $4,300.00 and Dr. Shivdasani was awarded a deposition fee in the amount of $400.00. The WCLJ did not direct a deposition fee for Dr. Holstein. These findings were memorialized by decision filed on September 13, 2010.
A claim for occupational disease is restricted to medical conditions resulting from the ordinary and generally recognized risks incident to a particular occupation; it derives from the very nature of the employment, not a specific condition peculiar to the employee's place of work (Matter of Mack v County of Rockland, 71 NY2d 1008 ). To establish an occupational disease, a claimant must demonstrate a recognizable link between the alleged condition and a distinctive feature of his/her work (Matter of Ball v New Era Cap Co., Inc., 21 AD3d 618 ). The nature of claimant's work involved walking quickly and repeatedly up and down a cement ramp. It also involved climbing into and out of very tight spots, also repeatedly. The Full Board finds that these repetitive tasks were distinctive features of the employment as a garage attendant, therefore meeting the criterion of occupational disease.
Neck and Back
It is well settled that it is within the Board's discretion to resolve conflicting medical opinions as such determination is supported by substantial evidence (Matter of Dimitriadis v One Source, 53 AD3d 704 ). Resolving conflicting medical opinions and drawing reasonable inferences from the evidence are within the province of the Board, particularly where the conflict concerns the issue of causation (Matter of Kot v Beth Ameth Home Attendant Serv., 70 AD3d 1114 ).
There is no dispute the claimant has significant back and neck injuries. The claimant testified that he worked as a parking lot attendant in the same garage for the last 28 years. This parking lot had two floors. To move from floor to floor, the claimant either had to walk or run on concrete ramps or climb up and down steel steps. On a daily basis, the claimant also had to climb in and out of car windows. Dr. Holstein testified the claimant's neck and back injuries are causally related to the claimant's repetitive trauma because the claimant had to move cars and would have to bend in awkward positions in and out of windows and cars. Although Dr. Holstein was not aware of the length of the claimant's employment, he believed the claimant worked as a parking lot attendant for at least ten years. Dr. Shivdasani testified the claimant's neck and back injuries are related to the claimant's numerous years working as a parking garage attendant because of all the maneuvering the claimant had to do to get in and out of cars from car windows and small cramped spaces, the claimant's climbing up and down the cement ramps, and climate temperature changes. Dr. Singh disagreed with Drs. Holstein's and Shivdasani's opinion regarding causal relationship and found the claimant's neck and back injuries are not related to the claimant's job as a parking garage attendant because the claimant had preexisting osteoporosis and that the claimant's repetitive activities of going up and down cement ramps would not cause the herniations found in the MRI scans. Although the record contains conflicting opinions on the issue of causal relationship, Drs. Holstein and Shivdasani provided the more persuasive opinions regarding causal relationship because both doctors were aware of all of the claimant's job duties, while Dr. Singh was not aware that the claimant had to climb in and out of car windows on a daily basis.
Based on the foregoing, the Full Board finds that claimant's neck and back injuries are causally related to the claimant's repetitive duties as a parking garage attendant.
WCL §§ 28 and 45
Prior to determining whether the claimant's claim for occupational neck and back injuries should be barred under WCL §§ 28 and/or 45, the Board must first set a date of disablement. Pursuant to WCL §§ 28 and 42, the Board has some latitude in determining the date of disablement in an occupational disease claim (Matter of Bonneau v New York City Dept. of Sanitation, 233 AD2d 796 ; Matter of Hastings v Fairport Cent. School Dist., 274 AD2d 660 , lv dismissed 95 NY2d 926 ). "In making this determination, the Board is not bound to select the earliest possible date of disablement nor is it required to give preference to certain events over others" (Matter of Bishop v St. Joe Minerals, 151 AD2d 917 , lv denied 75 NY2d 709 ). The Board has been affirmed when it has selected as the date of disablement the date of first medical treatment (see Matter of Winn v Hudson Val. Equine Ctr., 215 AD2d 920 ), the date that a physician "definitively concluded" that a condition was work related (see Hastings, 274 AD2d 660 ), the date of claimant's first causally related lost time (see Matter of Glasheen v New York State Dept. of State, 239 AD2d 792 ), and the date claimant permanently ceased working for the employer, even though he had previously had causally related lost time (see Matter of Cummings v Tenneco Chems. Div., Am. Plastics, 53 AD2d 944 ).
The record in this case revealed that the claimant had neck and back problems for years prior to seeing either Dr. Holstein or Dr. Shivdasani in 2009. However, the record contains no medical reports prior to 2009 and the carrier presented no evidence that the claimant was aware that his neck and back conditions were related to his repetitive job duties until 2009. In addition, the record does not contain any evidence that the claimant's prior neck and back conditions disabled him from employment. The first medical evidence that the claimant was aware that his neck and back injuries were related to his employment was Dr. Holstein's August 5, 2009, examination; and thus, the date of disablement is set at August 5, 2009.
As the claimant filed his claim for neck and back injuries in 2009, and the employer's lay witness testified the claimant provided notice of his claimed work injuries in 2009, the claim for neck and back injuries are not barred pursuant to WCL §§ 28 or 45.
Irritable Bowel Syndrome, Osteoporosis, Myofascial Pain Syndrome, Celiac Disease, and Heart Disease
It is claimant's burden to establish a causal relationship between his employment and his disability by competent medical evidence. 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. Mere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 ).
Dr. Shivdasani testified that merely being a male could contribute to claimant's coronary artery disease and that the claimant's stressful environment can relate to significant nervous stress in the body, which can trigger a coronary event. Dr. Shivdasani testified that over the years, the claimant may have developed a nervous bowel or irritable bowel syndrome, and this could have contributed to a gluten losing enteropathy, which is related to the claimant's celiac disease promoting osteoporosis. In addition, neither Dr. Shivdasani's report nor his deposition testimony revealed evidence that Dr. Shivdasani diagnosed the claimant with myofascial pain syndrome. Therefore, because Dr. Shivdasani only testified that the claimant's irritable bowel syndrome, osteoporosis, myofascial pain syndrome, celiac disease, and coronary artery disease could be related to the claimant's employment, the record does not contain sufficient medical evidence to establish the case for an occupational disease involving irritable bowel syndrome, osteoporosis, myofascial pain syndrome, celiac disease, or coronary artery disease.
When a claimant's disability has not been classified as permanent, there is no presumption or inference of a continuing disability, and the claimant's attending physicians have the burden of submitting up-to-date medical evidence that the disability is continuing (see 12 NYCRR 325-1.3[b]; Matter of Virtuoso v Glen Campbell Chevrolet, Inc., 66 AD3d 1141 ). Prior to November 1, 2010, the claimant had to produce medical evidence of a causally related disability every 45 days (see Matter of Rothe v Untied Med. Assoc., 2 AD3d 1264, 1265 ). Since November 3, 2010, the claimant's attending physician is required to submit progress reports of ongoing medically necessary treatment and "the intervals between [those] follow-up visits shall be no more than 90 days (12 NYCRR 325-1.3[b])."
In this case, the record does not contain any medical evidence from any of the claimant's treating physicians of a continuing disability after the WCLJ's September 13, 2010, decision. Although the WCLJ directed continuing awards at a rate of $600.00 per week, the record contains no evidence to support continuing payments after September 9, 2010. In addition, although the WCLJ directed awards at a total rate of disability based upon the claimant's neck, back, irritable bowel syndrome, osteoporosis, myofascial pain syndrome, celiac disease, and heart disease, the record contains credible evidence, through Dr. Holstein's testimony, that the claimant was totally disabled due to the claimant's neck and back injuries.
Based on the foregoing, and that there is no dispute that the claimant's average weekly wage should be set at $1,381.05, awards are hereby directed from August 5, 2009, to September 29, 2009, at no compensable lost time, from September 29, 2009, to September 9, 2010, at a temporary total disability rate of $600.00 per week with the carrier not to continue awards pending receipt of medical evidence of a causally related disability. Based on these awards, the claimant's attorney is hereby awarded a fee of $4,300.00.
In this case, and without explanation, it seems the WCLJ forgot to award a deposition fee to Dr. Holstein for his May 5, 2010, deposition testimony. Therefore, Dr. Holstein is hereby awarded a deposition fee in the amount of $400.00.
Accordingly, the WCLJ decision filed September 13, 2010, is hereby MODIFIED to establish this claim as an occupational disease involving the neck and back with a date of disablement of August 5, 2009; to find that claimant had no lost time from August 5, 2009, to September 29, 2009; to find that the carrier is not required to continue payments after September 9, 2010, based on the lack of medical evidence of disability; and to add a deposition fee to Dr. Holstein in the amount of $400.00. The decision is otherwise affirmed. No further action is planned at this time.