The Full Board, at its meeting on September 11, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision (MOD) filed December 2, 2011.
The issue presented for Mandatory Full Board Review is whether the aggravation of claimant's post-traumatic stress disorder (PTSD) is work related.
The Workers' Compensation Law Judge (WCLJ) established the case for an exacerbation of underlying PTSD.
The Board Panel majority affirmed the WCLJ decision in its entirety.
The dissenting Board Panel member determined that there was no nexus between the claimant's employment and his worsening PTSD, and that his preexisting condition was symptomatic prior to his work-related accident.
The self-insured employer (SIE) filed an application for Mandatory Full Board Review on December 22, 2011
Claimant filed a rebuttal on January 18, 2012
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, an assistant store manager at a supermarket, filed a C-3 (Employee's Claim for Compensation) form on November 12, 2008, in which he indicated that he suffered from PTSD due to "trauma related to [a] life threatening act" by a coworker's husband that occurred on November 3, 2007.
In a C-7 (Notice that Right to Compensation is Controverted) form filed on November 17, 2008, the SIE raised the issues of causal relationship, occupational disease, and accident arising in or out of the course of employment.
In a medical narrative report dated August 31, 2010, Dr. Fitz, the claimant's attending physician, opined that the claimant had preexisting PTSD which worsened due to "the condition at his work environment and the stalking related issues."
In a decision filed on January 28, 2011, the WCLJ found prima facie medical evidence and continued the case. The SIE appealed this decision and in a July 14, 2011, decision, the Board Panel denied the application for administrative review, holding that the WCLJ's decision was interlocutory.
At a hearing held on March 28, 2011, the claimant testified that he suffered from PTSD due to his military service in Vietnam and was found by Veterans Affairs to be 10% disabled. He testified that in 2004, he took approximately three days off of work and treated with a psychiatrist for one month as a result of a disagreement with a supervisor. The claimant stated that he was able to function at work after the issue was resolved. In November of 2007 the claimant took "a couple" days off of work and treated with a physician for less than one month due to stress and anxiety related to ongoing construction work at his home. He explained that he found a new place to live and moved his belongings during his time off. The claimant stated that he was never prescribed medication for stress, anxiety, or PTSD with respect to the above incidents.
The claimant further testified that while working in November of 2007, he called his coworker, the front-end department manager, in order to discuss a scheduling matter. Thereafter, the coworker's husband came to the claimant's office, accused him of having an affair with his wife, and threatened to kill him. The coworker's husband also contacted the claimant's superior and claimed that he had an audio-recording of a telephone conversation between the claimant and his wife that allegedly proved the existence of an affair. Upon his request, the claimant was transferred to another location due to the incident. Thereafter, the claimant's vehicles were vandalized numerous times.
In February 2008, claimant received a phone call from a New York State Trooper who advised him that the coworker's husband had been arrested for hiring an undercover detective to kill the claimant. The claimant explained that discovering this information was "traumatic" and more stressful than any prior event in his life. The claimant left work on long term disability and was prescribed medication for stress and anxiety. The coworker's husband was arrested and sentenced to probation, and an Order of Protection was issued.
On cross-examination, the claimant denied having an affair with his coworker and testified that their relationship was purely professional. The claimant explained that his vehicles had been vandalized while parked at his home. He testified that he had installed security cameras around his home as a result of the harassment.
The employee who oversaw the investigation involving the claimant and the coworker's husband also testified at the hearing held on March 28, 2011. The employee testified that the claimant was asked not to report to work for the duration of the investigation. She ultimately concluded that no inappropriate relationship existed between the claimant and his coworker.
In an IME-4 (Practitioner's Report of Independent Medical Examination) report dated March 21, 2011, Dr. Menzel, the SIE's consultant, opined that the claimant suffered from preexisting PTSD that was "exacerbated" by the incident involving the coworker's husband.
At a deposition held on May 10, 2011, Dr. Menzel testified that he was not Board certified in psychiatry. Dr. Menzel opined that the claimant's PTSD was causally related to his combat experience in Vietnam. When asked if the claimant had reached maximum medical improvement, the doctor stated that the claimant had "reached improvement to the level that he had prior to the work-related incident." Dr. Menzel opined that 90% of the claimant's disability was attributable to his military service and 10% to his work-related incident. Dr. Menzel opined that the claimant was able to work despite his PTSD.
Dr. Fitz also testified at a deposition held on May 10, 2011. Dr. Fitz testified that he had treated the claimant since February of 2001. The doctor explained that his colleague had advised the claimant to stop working on March 10, 2004, due to stress. The claimant subsequently returned to work in April of 2004. The claimant was again taken out of work, upon his own request, on November 7, 2007, due to anxiety related to work frustrations and ongoing construction at his home. The doctor testified that he "re-started [the claimant] on an anti-depressant at the time" and provided him with a two week absence note. Dr. Fitz opined that the incident regarding the coworker's husband had "significant impact" on the claimant's PTSD symptoms. Dr. Fitz stated that he could not determine to what degree each of the claimant's stressors affected his PTSD.
In a reserved decision filed on June 9, 2011, the WCLJ established the case for an exacerbation of underlying PTSD.
In its application for Mandatory Full Board Review, the SIE contends that the aggravation of the claimant's PTSD did not arise out of and in the course of his employment. The SIE also contends that the claimant's condition constituted a "symptomatic illness" prior to November of 2007.
In rebuttal, the claimant argues that his preexisting PTSD was not disabling prior to the work-related incident, despite the fact that he took time off of work in 2004 and 2007 due to stress, and that the aggravation of his PTSD symptoms arose out of and in the course of his employment.
Workers' Compensation Law (WCL) § 10(1) provides that compensation shall be provided for injuries "arising out of and in the course of the employment." "[A] mental injury precipitated solely by psychic trauma may be compensable in workers' compensation" (Matter of Guess v Finger Lakes Ambulance, 28 AD3d 996 , lv denied 7 NY3d 707  [citations omitted]). "[A] claim for work-related stress cannot be sustained absent a showing that the stress experienced by the affected claimant was greater than that which other similarly situated workers experienced in the normal work environment" (Matter of Spencer v Time Warner Cable, 278 AD2d 622 , lv denied 96 NY2d 706  [citations omitted]).
The Full Board finds, upon review of the evidence of record, that the stressors claimant experienced at the hands of his coworker's husband, which included a death threat and learning that an attempt had been made to hire someone to kill the claimant, were clearly far greater than that experienced in a normal work environment.
Nexus to Employment
The Full Board finds, upon review of the evidence of record, that there is a sufficient nexus between the claimant's employment and the incidents involving his coworker's husband. The claimant's coworker's husband threatened and harassed the claimant at his office regarding a business call the claimant made to his coworker from his place of employment. The coworker's husband contacted the claimant's superior and claimed to have a recording of the aforementioned phone call, which prompted an investigation into the allegation by the employer The claimant testified that he requested a transfer to another store because of the incident. While the subsequent escalation of the conflict occurred outside of the claimant's employment, the record supports a finding of a sufficient nexus to employment.
"[T]he fact that [an] injury relates to a preexisting condition will not preclude the claimant from obtaining relief where it is demonstrated that the claimant's employment exacerbated the condition in such a manner as to cause a disability which did not previously exist" (Matter of Ochsner v New Venture Gear, 273 AD2d 715 , lv dismissed 96 NY2d 731  [internal quotation marks and citations omitted]; see also Matter of Tipping v Orthopedic Surgeons of Long Is., 68 AD3d 1224 ).
The Full Board finds, upon review of the evidence of record, that the claimant suffered from a preexisting condition that was exacerbated in such a manner as to cause a disability which did not previously exist. The claimant's PTSD was not disabling prior to the work-related incident of November 2007. The claimant testified that he took approximately three days off of work in 2004, and a couple of days off in 2007, due to stress and anxiety. It was not until November of 2007, following the initial altercation with the coworker's husband, that the claimant began treating with medication and missed a significant amount of time from work. As such, the aggravation of the claimant's preexisting PTSD was causally related to his employment.
Accordingly, the WCLJ reserved decision filed on June 9, 2011, is AFFIRMED. The case is continued.