Case # 80306353
Date of Accident: 03/17/2003
District Office: Buffalo
Employer: K&T Pump & Tank Inc
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 48397640 083
Date of Filing of Decision: 12/03/2012
Claimant's Attorney: Sawers & Sackel, 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 January 24, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the State Insurance Fund (SIF) is entitled to reimbursement from the Special Funds Conservation Committee (Special Funds) pursuant to Workers' Compensation Law (WCL) § 15(8)(d).

The WCLJ found that WCL § 15(8)(d) applies.

The Board Panel majority affirmed.

The dissenting Board Panel member found that WCL § 15(8)(d) does not apply.

Special Funds requests Mandatory Full Board Review.

The carrier filed a rebuttal.

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

FACTS

The claimant has an established claim for injuries to the back and neck arising out of an accident occurring on March 17, 2003.

SIF filed a Form C-250 (Notice of Claim for Reimbursement Out of Special Disability Fund Under Section 15-8) on April 8, 2004. SIF alleged that the claimant suffered from preexisting conditions including a hernia, hypertension, a right knee injury and a neck injury.

The claimant was examined by SIF's consultant, Dr. Bauer, on several occasions. At examinations on August 24, 2007, and August 7, 2009, Dr. Bauer noted that the claimant exhibited full range of motion in his lower extremities.

Dr. Bauer prepared a report dated May 27, 2010, based upon his May 19, 2010, examination of the claimant and a records review. Dr. Bauer noted that the claimant stated that he had to stop participating in hobbies such as golfing and bowling as a result of his injuries, but Dr. Bauer's report does not specify whether the claimant was referring to his March 17, 2003, injuries, or his preexisting conditions. Dr. Bauer also notes that the claimant told him that he could not squat or run as a result of his preexisting knee injury. Upon examination, Dr. Bauer found that the claimant had medial joint line pain and effusion in the right knee. Dr. Bauer opined that the claimant's disability is substantially and materially greater because of his preexisting knee injury and that this condition was a hindrance to any employment involving squatting or running.

The claimant testified at a hearing on September 15, 2010, that he had a couple of surgeries prior to his March 17, 2003, work accident. He had a right knee meniscus tear repaired in 2000 and was out of work for two months thereafter. He was diagnosed as suffering from chondromalacia and arthritis of the right knee in 2007. The claimant denied telling Dr. Bauer that he could not participate in golfing or bowling. The claimant also testified that he did not tell Dr. Bauer that he could not squat or run, but he may have misunderstood Dr. Bauer's question. The claimant noted that after his March 17, 2003, work injury, he went back to work finishing concrete, a job which required squatting. The claimant testified that his prior knee injury did not hinder his employment, but did sometimes bother him.

At the close of the hearing, the WCLJ found that the claimant was attached to the labor market and awarded lost wage benefits. The WCLJ also found that WCL § 15(8)(d) applies. Special Funds then requested the testimony of Dr. Bauer, but the WCLJ denied the request as untimely. The WCLJ's findings were memorialized in a notice of decision filed September 20, 2010.

Special Funds requested administrative review.

LEGAL ANALYSIS

Special Funds requests Mandatory Full Board Review, arguing that Dr. Bauer's May 27, 2010, report was not credible because it conflicts with his prior examination findings. Special Funds further argues that the claimant credibly testified that he was not subject to any restrictions because of his prior knee injury and therefore WCL § 15(8)(d) does not apply.

In rebuttal, SIF argues that Dr. Bauer's report was credible, and since Special Funds did not submit any contrary medical evidence, the Board Panel majority correctly found that WCL § 15(8)(d) applies.

For any case with a date of accident or disablement from August 1, 1994, to June 30, 2007, inclusive, an employer or its carrier may obtain reimbursement from the Special Disability Fund for compensation and medical benefits paid after 260 weeks of disability, provided the employer can show that (1) the claimant has a preexisting permanent physical impairment that hinders, or is likely to hinder, job potential; (2) the claimant has a subsequent work-related injury or occupational disease; and (3) the claimant has a permanent disability caused by both conditions that is materially and substantially greater than that which would have been caused by the work-related condition alone (see WCL § 15[8][d]; § 15[8][h][2][A]; Matter of Grabinsky v First At Nursing Servs., 79 AD3d 1494 [2010]; Matter of Guarascio v Spargo Wire Co., 32 AD3d 1148 [2006]). For the first requirement, "the issue is not whether the pre-existing condition is an obstacle or likely to become a handicap to the particular job, but rather whether it is a hindrance to or limits [the claimant's] employability generally. (Matter of Nagorka v Goldstein, 4 AD2d 904; Matter of Torelli v. Robert Hall Clothes, 9 AD2d 147)" (Matter of De Dominic v Schlitz Brewing Co., 30 AD2d 578 [1968]).

In the present case, Dr. Bauer opined that the claimant's knee injury was a hindrance to employment that involved squatting or running. He based his opinion upon alleged statements by the claimant that he had to cease golfing and bowling, and could not squat or run because of his knee injury. However, in his earlier reports, Dr. Bauer had noted that claimant exhibited a full range of motion in his lower extremities, and it was not until he was asked to offer an opinion with respect to the applicability of WCL § 15(8)(d) that Dr. Bauer found restrictions with respect to claimant's knee. The claimant credibly testified that he never told Dr. Bauer that he could not play golf, bowl, run or squat. The claimant further testified that after his knee injury, he was able to return to work as a concrete finisher, which required squatting. Thus, Dr. Bauer's opinion that the claimant's knee injury was or was likely to be a hindrance to employment was based upon inaccurate information and is not credible.

Therefore, the preponderance of the evidence in the record supports a finding that the claimant's prior knee injury was not and was not likely to be a hindrance to employment, and WCL § 15(8)(d) does not apply.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on September 20, 2010 is MODIFIED to find that WCL § 15(8)(d) does not apply. No further action is planned by the Board at this time.