Case # G0348461
Date of Accident: 10/08/2010
District Office: NYC
Employer: Long Island College Hospital
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 64637242-322
Date of Filing of Decision: 10/10/2012
Claimant's Attorney: Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano, LLP
Panel: Robert E. Beloten

The Full Board, at its meeting held on September 11, 2012, considered the above-captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on November 2, 2011.

ISSUES

The issues presented for Mandatory Full Board Review are:

1. whether the carrier, State Insurance Fund (SIF) waived its defenses to the claim by failing to file a materially complete pre-hearing conference statement;
2. whether SIF should be allowed to obtain a second independent medical examination on the issue of causal relationship; and
3. whether the claim should be returned to the Workers' Compensation Law Judge (WCLJ) for further evidence regarding whether the claimant suffered a repetitive trauma accident or an occupational disease.

The WCLJ found that SIF filed a materially incomplete pre-hearing conference statement and therefore waived its defenses; established the claim for a repetitive injury to the back; set the average weekly wage at $1,076.27; and awarded lost wage benefits.

The Board Panel majority found that the case should not be have been on the expedited hearing calendar because it presented complex facts, and that the records required further development regarding whether the claimant's injury is the result of an accident or an occupational disease. The Board Panel majority rescinded the establishment of the claim without prejudice, and returned the case to the WCLJ for the claimant's testimony regarding the cause of her injury.

The dissenting Board Panel member found that SIF waived its defenses by failing to file a materially complete pre-hearing conference statement, and therefore it should not have been allowed to file an independent medical examination report on the issue of causation. The dissenting Board Panel member would affirm the WCLJ's decision.

In the claimant's application for Mandatory Full Board Review, she argues that the carrier should not have been allowed to submit a clarifying independent medical examination because it already submitted an independent medical examination report, and it waived its defenses by failing to file a materially incomplete pre-hearing conference statement. The claimant argues that the Board Panel should have affirmed the WCLJ's findings.

In rebuttal, the carrier argues that its pre-hearing conference statement was not incomplete, and even if it was deemed to be, the claimant still bears the burden of proving that she suffered a compensable injury.

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

FACTS

The claimant, a personal care assistant, filed a C-3 (Employee Claim) on December 22, 2010, alleging that she stopped working on October 9, 2010, due to a work-related back injury. The claimant stated that her back injury was caused by "constant lifting of patients."

SIF filed a timely C-7 (Notice that Right to Compensation is Controverted) on March 18, 2011, raising the defenses of prima facie medical evidence, occupational disease arising out of and in the course of employment, employer-employee relationship, and timely filing under Workers' Compensation Law (WCL) § 28. SIF filed a pre-hearing conference statement on March 25, 2011. The pre-hearing conference statement did not list any defenses, but indicated that SIF would be offering the testimony of an employer's representative into evidence, and would like to cross-examine the claimant's treating physician, Dr. Fitzpatrick.

An MRI of the claimant's lumbar spine was performed on October 17, 2010, and showed a loss of disc height most prominent at L5-S1 and degenerative changes. At an examination on February 17, 2011, the claimant's treating physician, Dr. Agarwal, noted that the claimant reported that her back pain started after she began working for the employer, but she did not know of an exact incident which caused the pain or an exact date that the pain began. Dr. Agarwal diagnosed the claimant as suffering from degenerative disc disease and radiculopathy, lumbosacral spondylosis, and SI joint dysfunction.

At an examination of February 23, 2011, the claimant's treating physician, Dr. Paulino, noted that the claimant reported a back injury while lifting a patient at work on October 8, 2010.

The claimant was examined by SIF's consultant, Dr. Nunez, on March 21, 2011. The claimant told Dr. Nunez that she felt some pain in her back while working on October 9, 2010. The claimant stated that her pain was the result of moving patients "over time," and she could not give a specific date when this occurred. Dr. Nunez did not opine regarding whether the claimant's condition was causally related.

At a pre-hearing conference on April 12, 2011, pursuant to 12 NYCRR 300.38, the matter was transferred to the special expedited hearing docket, and a hearing was scheduled for April 27, 2011. At the April 27, 2011, hearing, the claimant argued that the carrier waived its defenses by failing to file a materially complete pre-hearing conference statement. The WCLJ agreed, and established the case for an injury to the back, set the average weekly wage at $1,076.27, and awarded wage benefits. The claimant gave brief testimony regarding her work status. The WCLJ's findings were memorialized in a Notice of Decision (NOD) filed May 5, 2011.

The PHC-16.1 (pre-hearing conference statement) filed by the carrier is completely blank with respect to the defenses raised and the offer of proof to support each defense. 12 NYCRR 300.38 (f)(2)(ii) and (iii).

SIF requested administrative review, arguing that its pre-hearing conference statement was not materially incomplete, that it should be allowed to cross-examine the claimant's treating physician, the claimant should be directed to provide clarifying medical evidence regarding causal relationship, and the WCLJ erred in establishing the case. In rebuttal, the claimant argued that the WCLJ properly established the claim because the SIE waived its defenses.

The Board Panel majority found that the case should not be on the expedited hearing calendar because it presented complex facts, and that the records required further development regarding whether the claimant's injury is the result of an accident or an occupational disease. The Board Panel majority rescinded the establishment of the claim without prejudice, and returned the case to the WCLJ for the claimant's testimony regarding the cause of her injury.

The claimant testified at a hearing on January 26, 2012, that, at the time of her injury, she has been working as a patient care assistant and her job duties involved lifting patients. She stated that she first had severe back pain on October 8, 2010. The claimant stated that she sometimes had back pain before October 8, 2010, but that pain was different. On October 8, 2012, the pain began gradually around the middle of the day and increased to the point where she was unable to get out of bed the following morning. The claimant testified that she informed her supervisor in November 2010.

LEGAL ANALYSIS

Failure to file a materially complete pre-hearing conference statement

Pursuant to 12 NYCRR 300.38(f)(4), "the filing by the insurance carrier of a materially incomplete [pre-hearing conference] statement shall result in a waiver of defenses to the claim". The carrier is required to include in its pre-hearing conference statement "an offer of proof for each defense raised" (12 NYCRR 300.38[f][2][iii]).

While SIF argues that the case was not appropriate for the expedited hearing calendar, and therefore it was not required to file and serve a pre-hearing conference statement, this is not the case. Pursuant to the regulations, pre-hearing conferences are required in all cases before the Board (12 NYCRR 300.33[a], 12 NYCRR 300.38[g][1]).

In the present case, SIF did not list or provide an offer of proof regarding any of the defenses it raised in its pre-hearing conference statement. Therefore, the Full Board finds that SIF's pre-hearing conference statement was materially incomplete and it is deemed to have waived all defenses pursuant to 12 NYCRR 300.38(f)(4).

SIF's right to have a second independent medical examination

Absent a showing of good cause or other reason to excuse the untimely filing, when the carrier has waived its defenses by failing to file a timely pre-hearing conference statement, it shall be precluded from offering any evidence to dispute whether the injury was causally related to work. The Board must determine whether the alleged injury was work-related without regard to the carrier's proof (Matter of Cappellino v Baumann & Sons Bus Company, 18 NY3d 890 [2012]).

In the present case, SIF is precluded from offering any evidence, including Dr. Nunez's report. Therefore, SIF should not be allowed to obtain a second independent medical examination.

Establishment of the claim

Even where the employer or carrier waived its defenses by failing to file a materially complete pre-hearing conference statement, the claimant still "ha[s] the initial burden of showing that she sustained a work-related injury" (Matter of Coleman v Schenectady Department of Social Services, 80 Ad3d 913 [2011]). "While a medical opinion is sufficient to establish …causal relationship, the opinion 'must signify 'a probability as to the underlying cause' of the [claimant's] injury which is supported by a rational basis'" (Matter of Pacette v SUNY Cobleskill, 87 AD3d 1262 [2011]).

In the present case, the claimant's treating physicians opined that the claimant's condition was caused by her employment. While the medical records include information sufficient to find an occupational disease or an accident, the claimant's testimony fully supports a finding that she suffered an accident on October 8, 2010, which caused a back injury. While the claimant stated that she occasionally had pain prior to the accident, she described her prior pain as distinct from that she suffered on October 8, 2010. Additionally, the claimant's pain began in the middle of the day and increased to the point where she was out of work the following. This chronology suggests that the claimant suffered a sudden trauma, despite the fact that she could not identify a specific incident which caused her injury.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant suffered a compensable back injury due to an accident.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on May 5, 2011 is AFFIRMED. No further action is planned by the Board at this time.