Case # 0432211
Date of Accident: 03/19/2002
District Office: NYC
Employer: Tully Construction
Carrier: Liberty Mutual Insurance Co
Carrier ID No.: W124002
Carrier Case No.: WC205-284618
Date of Filing of Decision: 12/03/2012
Claimant's Attorney: Ranieri & Newman
Panel: Robert E. Beloten

The Full Board, at its meeting on October 16, 2012, considered the above captioned case for Mandatory Full Board Review of the Amended Board Panel Memorandum of Decision, duly filed and served on January 23, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant's sarcoidosis constitutes a "qualifying condition" as that term is defined in Article 8-A of the Workers' Compensation Law.

In a decision filed on March 24, 2011, the Workers' Compensation Law Judge (WCLJ) found that the claim was barred pursuant to Workers' Compensation Law (WCL) § 28.

The Board Panel majority reversed the WCLJ's decision, and found that Article 8-A is applicable to this claim because the claimant's sarcoidosis was a latent condition. The Board Panel majority further also found that the date of accident is March 19, 2002, and the date of disablement is May 31, 2004, thereby making this claim, filed on July 19, 2004, timely.

The dissenting member disagreed with the finding that the claimant's sarcoidosis is a qualifying condition under Article 8-A.

On January 24, 2012, the carrier, Risk Enterprise Management, filed an application for Mandatory Full Board Review, arguing that Article 8-A does not apply to this claim. It is noted that on December 16, 2011, Liberty Mutual also filed, on behalf of the employer of record, an application for Mandatory Full Board Review of the original Board Panel Memorandum of Decision, filed on November 15, 2011, which was superseded by the Amended Board Panel Memorandum of Decision (filed to correct a typographical error) under review, asserting the same argument as Risk Enterprise Management.

On February 7, 2012, the claimant filed a rebuttal arguing that Article 8-A is applicable to this claim.

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

FACTS

The claimant submitted a C-3 (Employee's Claim for Compensation) on July 19, 2004, wherein he alleged that while working as construction laborer at ground zero he inhaled toxins which resulted in pulmonary sarcoidosis. The claimant listed his employers as Tully, Northeast Construction, and Civetta.

The claimant's treating physician, Dr. Rhodes, submitted a May 31, 2004, report in which he noted that the claimant worked at ground zero, and was exposed to high levels of toxins. Dr. Rhodes diagnosed the claimant with causally related sarcoidosis, and concluded that the claimant was partially disabled.

By a decision filed on January 7, 2005, the WCLJ found prima facie medical evidence for pulmonary sarcoidosis.

At the hearing held on May 31, 2005, the claimant testified by telephone that he worked at ground zero as a construction laborer. While working at the site, he experienced breathing problems. He could not recall when he first sought treatment. The claimant testified that his physician advised him that he could not work in an environment where he was exposed to dust and/or fumes.

In a decision filed on March 16, 2006, the WCLJ directed the claimant to produce documentation regarding his deportation, and precluded Liberty Mutual from submitting a consultant's report. Liberty Mutual appealed that decision. However, the Board Panel, in a decision filed August 9, 2006, affirmed the WCLJ's decision.

At the hearing held on April 28, 2006, the claimant testified by telephone that he first worked at ground zero on September 13, 2001. He worked for Seasons at 5 World Trade Center for approximately two months. Subsequently, he worked for Gateway, Grace, Mazzocchi, Tully, and Evergreen. He worked at the site of 1 World Trade Center, removing debris with heavy equipment. The air smelled bad at the site. Sometime while working at the site, the union sent the claimant [and other workers] to the Professional Evaluation Medical Group (PEMG) to get a routine checkup and to see about their breathing (Hearing transcript, 4/28/06, p. 45). At that time, the claimant was advised by PEMG that he had a severe obstruction of his lungs. This was the first time that the claimant was told he had a problem with his lungs or breathing. (p. 58). Prior thereto, he was not under the care of any doctor and was "very healthy." (p. 59). He last worked at ground zero on March 19, 2002, the date on which he broke his left ankle while working for Tully at 1 World Trade Center (WCB case number 00219787). The claimant returned to work in 2003, but ceased working sometime thereafter. He could not specify the dates on which he resumed working or on which he ceased working. The first time a doctor advised him that he suffered from sarcoidosis was on April 16, 2003, when the claimant was treated at Bellevue Hospital. The claimant was deported from the United States to Jamaica on October 18, 2003, in accordance with a plea agreement relative to a criminal charge. While the claimant has sought work, he is unable to find work within the physical restrictions placed upon him by his treating physician.

By a decision filed May 4, 2006, the WCLJ marked the case no further action pending the claimant's submission of medical evidence for all periods of causally related lost time. The WCLJ also specifically directed claimant to produce the "PEMG records and entire Bellevue Hospital records."

On July 18, 2008, claimant filed a WTC-12 (Registration of Participation in World Trade Center Rescue, Recovery and/or Clean-up Operations), in which he indicated that he worked at ground zero beginning on September 13, 2001. He indicated that he worked for four different employers at the World Trade Center site: Seasons Demolition, Grace Industries, Mazzocchi Wrecking, and Tully Construction.

In a letter dated May 16, 2009, the claimant requested a hearing. In response thereto, the case was reopened on May 28, 2009.

By decision filed June 25, 2009, the WCLJ marked the case no further action pending the claimant's submission of his hospital records from Bellevue Hospital.

Thereafter, the claimant submitted an October 14, 2009, RFA-1 (Claimant's Request for Further Action), attached to which were the records of claimant's treatment at Bellevue Hospital. The Bellevue Hospital records indicate that on March 5, 2003, the claimant's clinical indication was sarcoidosis. In a Bellevue Hospital report dated April 16, 2003, the attending doctor indicated that the claimant had "sarcoidosis stage II, newly diagnosed by bronchoscopic bx." (see CIS Doc. I.D. # 96668971, filed 10/26/04). In response to the RFA-1, the case was reopened on February 3, 2010.

By decision filed March 3, 2010, the WCLJ directed the claimant to produce the records from PEMG (the union doctors). The WCLJ further directed the parties to depose the claimant's treating physician, Dr. Rhodes.

Dr. Rhodes testified by deposition on May 21, 2010, that he first treated the claimant in 2004. The claimant advised the doctor that he worked at ground zero in 2001. The claimant complained of shortness of breath. Dr. Rhodes did not review the claimant's x-rays, pulmonary function tests, spirometry, February of 2003 biopsy report, or September 15, 2009, CAT scan. Dr. Rhodes diagnosed the claimant with causally related sarcoidosis. He explained that the airborne particulate matter to which the claimant was exposed is known to cause lung damage and chronic pulmonary disease. Dr. Rhodes conceded that he was not aware of any literature connecting the exposure to pollutants to the development of sarcoidosis. He admitted that sarcoidosis is a disease of unknown etiology. Dr. Rhodes stated, "I believe he had the sarcoidosis before the exposure but I'm not certain of that." He would have to review the x-rays prior to 2001 to ascertain whether the condition was pre-existing. The doctor asserted that regardless of cause, the claimant's work exposure to toxic airborne particulate matter resulted in the claimant's shortness of breath.

On January 11, 2011, claimant submitted a letter from PEMG stating that it had no record pertaining to claimant, who was seen in 2002, because the records had been destroyed. However, on February 6, 2011, claimant submitted medical records from PEMG consisting of a letter from Dr. Schinder to the claimant dated August 27, 2002, which indicated that a copy of the claimant's lab results were enclosed. In the letter, Dr. Schinder suggested that the claimant follow up with his primary care physician regarding the enclosed findings. The letter also indicated that a complete written report with the remainder of the claimant's physical findings would follow within 4-5 weeks. Also attached was an August 25, 2002, lab report with the results of blood tests.

In the March 24, 2011, decision, the WCLJ disallowed this claim as time barred by Workers' Compensation Law § 28.

LEGAL ANALYSIS

Article 8-A was added to the Workers' Compensation Law (WCL) in 2006 for the purpose of extending the claim filing deadline for workers and volunteers who sustain latent injuries as the result of participation in rescue, recovery and cleanup operations following the September 11, 2001, terrorist attacks on the World Trade Center.

Article 8-A applies only when claimant contracts a "qualifying condition." WCL § 161 ("Definitions") states: "Whenever used in this article: 3. 'Qualifying condition' means any latent disease or condition resulting from a hazardous exposure during participation in World Trade Center rescue, recovery or clean-up operations."

For purposes of Article 8-A, "a condition is latent when it is present, but not yet active" (Matter of Evergreen Recycling of Corona, 2008 NY Wrk Comp 00648806). Here, the claimant testified that he worked at ground zero from September 13, 2001, to March 19, 2002, when he suffered a broken ankle while working. The claimant took time off in 2002 due to an ankle injury, not for any breathing problems, and returned to work sometime within twelve months of his ankle injury. Furthermore, while it is true that the claimant testified that while working at the WTC construction site, he was advised that he had a severe obstruction of the lungs (by PEMG, the doctors the union asked him to see as part of a routine checkup), there is no evidence that the claimant sought out further treatment for breathing issues until he was treated at Bellevue Hospital in 2003. It was not until such time (April 16, 2003) that the claimant was diagnosed with sarcoidosis. Dr. Rhodes diagnosed the claimant with causally related sarcoidosis. No medical evidence to the contrary exists in the record.

In sum, based upon a review of the record and the preponderance of the evidence the Full Board finds that the claimant's sarcoidosis is a latent condition as contemplated by Article 8-A.

The Full Board also hereby establishes the date of accident as March 19, 2002 (the last date on which the claimant worked at ground zero as per his testimony), and the date of disablement as May 31, 2004 (the date of Dr. Rhodes' diagnosis), in accordance with WCL § 161 et seq. In addition, because the date of disablement (May 31, 2004) falls within the dates specified in WCL § 168, the Full Board finds that this Article 8-A claim was filed timely on July 19, 2004.

CONCLUSION

Accordingly, the WCLJ decision filed on March 24, 2011, is REVERSED and the case is continued for the resolution of all outstanding issues.