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Case # 00751218
Date of Accident: 11/19/2007
District Office: NYC
Employer: VIP Health Care Service
Carrier: Liberty Mutual Insurance Co
Carrier ID No.: W124002
Carrier Case No.: WC823392-270
Date of Filing of Decision: 10/10/2012
Claimant's Attorney: Nancy A. Bergan, PC
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

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 October 27, 2011.

ISSUES

The issues presented for Mandatory Full Board Review are:

whether the establishment of the claim for an accidental back injury should be rescinded;
whether the claim should be amended to include a consequential right hip injury; and
whether the claimant should be subject to a discretionary penalty under Workers' Compensation Law (WCL) § 114-a.

The Workers' Compensation Law Judge (WCLJ) amended the claim to include the neck and right hip, found that the claimant did not violate WCL § 114-a, and retroactively authorized emergency hip surgery.

The Board Panel majority found that the claimant made a misrepresentation of a material fact by denying during testimony and failing to advise her physicians and the carrier's consultants that she previously had back, neck and hip problems. The Board Panel noted that the claimant's past medical history in regard to these complaints was not insignificant, and was not the type that the claimant could reasonably forget. The Board Panel majority elected to impose a mandatory penalty of disqualification from compensation benefits for the period from December 17, 2007, to October 25, 2010. The Board Panel majority did not elect to impose a discretionary penalty, noting that the carrier's consultants found the claimant's back and hip complaints to be causally related, and the carrier did not take advantage of the opportunity to obtain a clarifying opinion. The Board Panel majority also affirmed the WCLJ's amendment of the claim to include the right hip, but reversed the amendment of the claim to include the neck because of insufficient evidence.

The dissenting Board Panel member would have also imposed a discretionary penalty pursuant to WCL § 114-a, disqualifying claimant from receiving lost wage benefits after October 25, 2010, because the claimant made a false statement under oath.

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

FACTS

The claimant, a personnel recruiter, filed a Form C-3 (Employee Claim) on November 29, 2007, alleging that she sustained a back injury on November 19, 2007, when she bent over to pick up a file. The carrier commenced temporary payments without prejudice and without admitting liability (see WCL § 21-a).

Claimant initially treated with Dr. Brumberg on November 19, 2007. The claimant began treating with Dr. Diwan on November 27, 2007. Dr. Diwan's reports do not make reference to any prior conditions regarding the claimant's back, neck or hip. Dr. Diwan noted in his November 28, 2007, report that an x-ray of the lumbar spine revealed osteopenia, spondylosis, and diminished disc space at L4-L5 and L5-S1.

The claimant was examined by the carrier's consultant, Dr. Michaels, on February 28, 2008. The claimant advised Dr. Michaels that she had "no prior serious illnesses or injuries" and that she did not have any similar conditions. Dr. Michaels noted that the claimant demonstrated positive voluntary guarding during range of motion testing. He diagnosed the claimant as suffering from a lumbar sprain.

An MRI of the claimant's lumbar spine was performed on January 26, 2008. The MRI showed L3-L4 severe facet arthopathy causing Grade 1 anterolisthesis and herniation, spinal stenosis, and mild bilateral neural foraminal narrowing.

Dr. Michaels examined the claimant again on February 28, 2008. He noted that the claimant reported no improvement in her symptoms and continued to report no prior related accidents or conditions. He diagnosed the claimant as suffering from a causally related lumbar sprain and pre-existing spinal stenosis.

In a notice of decision filed May 8, 2008, the claim was established for an injury to the back, the claimant's average weekly wage was set at $614.52, and the claimant was directed to produce prima facie medical evidence regarding the neck.

Dr. Michaels also examined the claimant on June 12, 2008. The claimant advised Dr. Michaels that she had no prior injuries or conditions related to the back. He diagnosed the claimant as suffering from pre-existing but exacerbated spinal stenosis, and opined that she suffered from a moderate disability.

At an examination on October 16, 2008, the claimant advised Dr. Michaels that she had a history of acid reflux. She again denied other similar conditions or accidents. Dr. Michaels noted that the claimant exhibited poor effort and refused to even attempt range of motion testing during the examination.

An MRI of the claimant's cervical spine was performed on November 14, 2008. The MRI showed moderate to severe disc narrowing at C4-C5 and lesser at C5-C6, and anterior osteophyte formation. The MRI did not show significant spondylolisthesis or acute findings.

The claimant was examined by her treating physician, Dr. Diwan, on December 16, 2009. The claimant told Dr. Diwan that, on October 30, 2009, she had severe back pain and her leg gave out, causing her to fall and fracture her right hip. Dr. Diwan opined that the claimant's hip injury was consequential to her back injury because the claimant stated that her leg gave out due to back pain.

The claimant was also examined by the carrier's consultant, Dr. Alvarez, on July 14, 2010. She denied any prior problems with her back or hip. Dr. Alvarez diagnosed the claimant as suffering from chronic low back pain with L3-L4 herniated nucleus pulposus. Dr. Alvarez opined that the claimant's hip injury was consequential to her work-related back injury, noting that claimant "related having…significant back and right leg pain with numbness and tingling sensation causing the knee to give out resulting in a fall." On December 22, 2009, the claimant filed a request for further action, seeking to amend the case to include the right hip.

The claimant testified at a hearing on August 16, 2010. She stated that on October 29, 2009, she was walking and had back pain causing her leg to give out. She testified that she fell and broke her hip. Her daughter took her to the hospital, where she underwent a hip replacement. She stated that her legs had never given out before. The claimant also testified that she had never had any problems, been evaluated by a doctor, or had any diagnostic tests for any hip complaints prior to her 2007 work accident. The claimant also testified that she did not have any problems with her back or neck before the 2007 work accident. The carrier then raised the issue of whether the claimant violated WCL § 114-a, advising that it was in possession of medical records indicating prior back, hip and neck problems.

The claimant's prior records indicate that she treated with Dr. Chamikles for back, neck and hip complaints. On January 17, 2003, the claimant underwent a bone scan of the right hip. A January 23, 2003, MRI of the lumbosacral spine showed L3-L4 central spinal stenosis. A January 25, 2004, MRI of the claimant's cervical spine, which was performed due to neck pain, revealed multilevel disc degeneration, especially at C5-C6 and C4-C5, right foraminal narrowing at C4-C5 and mild cord compression at C4-C5 and C5-C6. A March 29, 2004, DEXA scan showed that the claimant suffers from osteopenia of the lumbar spine and hip. A November 14, 2005, x-ray showed moderate to severe disc space narrowing at C4-C5, and to a lesser degree at C5-C6, with anterior oseophyte formation. On November 4, 2005, the claimant complained of neck pain radiating into both arms, and back pain radiating into both legs.

The parties presented oral summations at a hearing on October 25, 2010. At the close of the hearing, the WCLJ found that the claimant had not made a misrepresentation of material fact, and therefore did not violate WCL § 114-a, amended the claim to include the right hip and neck, authorized the claimant's right hip surgery, and awarded lost wage benefits. The WCLJ's findings were memorialized in a notice of decision filed October 28, 2010.

The carrier requested administrative review, arguing that the WCLJ's decision should be rescinded. The carrier argued that the claimant's failure to advise its IME of her prior back, neck and hip problems, and testimony denying any prior problems, was a misstatement of material fact, and the Board should impose a mandatory and discretionary penalty pursuant to WCL § 114-a. The carrier also argued that the WCLJ improperly amended the claim to include the neck and right hip. Finally, the carrier asserted that the establishment of the claim was suspect because of the claimant's failure to disclose her prior back problems.

In rebuttal, the claimant argued that she previously suffered from osteopenia and osteoporosis, and this did not constitute a significant injury, disease, or physical impairment. The claimant also argued that she was not treated for these conditions, and therefore her failure to disclose the prior problems was not material.

The claimant was again examined by the carrier's consultant, Dr. Alvarez, on May 11, 2011. She again denied any prior problems with her back or hips. Dr. Alvarez diagnosed the claimant as suffering from chronic low back pain L3-L4 herniated nucleus pulposus, and status post right hip replacement for femoral neck fracture. Dr. Alvarez did not opine on whether the claimant's hip injury was causally related.

The Board Panel, in a decision filed October 27, 2011, rescinded the amendment of the claim to include the neck, and found that the claimant violated WCL § 114-a. The Board Panel majority imposed a discretionary penalty for the period from December 17, 2007, to October 25, 2010, but declined to impose a mandatory penalty.

The carrier subsequently submitted the claimant's prior medical records to its consultant, Dr. Michaels. The additional medical records provided to Dr. Michaels show, in addition to the prior medical records discussed at the August 16, 2010, hearing, that the claimant also underwent a DEXA scan of the back and hip on March 6, 2007, which showed osteoporosis in the lumbar spine and osteopenia in the hips. These results showed a worsening in the claimant's condition since a DEXA scan performed on March 29, 2004. Dr. Chamikles' notes also indicate that he examined the claimant on April 12, 2007, for complaints of back and neck pain lasting two weeks. Progress notes from an examination by Dr. Chamikles on May 24, 2007, are difficult to read, but refer to the claimant's back and neck.

In a report dated November 23, 2011, Dr. Michaels opined that the claimant had pre-existing back problems, and noted that his opinion regarding causal relationship of claimant's back injury would have been impacted by disclosure of the claimant's prior problems.

LEGAL ANALYSIS

Establishment of the claim

The Board has continuing jurisdiction over each case that properly comes before it (WCL § 123). This "broad jurisdiction" grants the Board "the power, on its own motion or on application, to modify or rescind a [WCLJ's] decision…and…its continuing jurisdiction embraces the power of modification or change with respect to former findings, awards, decisions or orders relating thereto, as in its opinion may be just" (Matter of Donovan v BOCES Rockland County, 63 AD3d 1310 [2009] [internal quotation marks and citations omitted]). Thus, the Board has the authority to rescind the establishment of the present case.

However, "[i]t is well settled that where causally related injuries from a claimant's employment precipitate, aggravate or accelerate a preexisting infirmity or disease, the resulting disability is compensable" (Matter of Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129 [1994] [citations omitted]). In the present case, the medical evidence supports a finding that the claimant suffered a work accident on November 29, 2007, which either caused a back injury or aggravated her pre-existing condition. The claimant was working full time prior to the accident, but has been unable to work since that time. Therefore, the establishment of the claim is supported by the record, irrespective of the claimant's misrepresentation regarding her medical history.

Consequential right hip

The courts have long recognized that a consequential injury is compensable, provided there is a sufficient causal nexus between the initial work-related injury for which a claim is established and the subsequent injury (see e.g. Matter of Barre v Roofing & Flooring, 83 AD2d 681 [1981]; Matter of Pellerin v N.Y.S. Dept. of Corrections, 215 AD2d 943 [1995], lv den 87 NY2d 806 [1996], Matter of Scofield v City of Beacon Police Dept., 290 AD2d 845 [2002]). "Whether a claimant's disability consequentially arose from injuries sustained in a previous accident is a factual issue left for resolution by the Board (see Matter of Scofield v City of Beacon Police Dept., 290 AD2d 845 [2002]; Matter of Trickel v Judski Assoc., 247 AD2d 778 [1998]). Likewise, it is for the Board to decide whether a claimant's conduct is unreasonable and therefore constitutes an intervening act negating causality (see Matter of Pellerin v New York State Dept. of Correction, 215 AD2d 943 [1995], lv denied 87 NY2d 806 [1996])" (Matter of Wallace v Oswego Wire, Inc., 29 AD3d 1057 [2006]).

However, "[i]t [i]s claimant's burden to establish a causal relationship between his employment and his disability by competent medical evidence (see Matter of Sale v Helmsley-Spear, Inc., 6 AD3d 999 [2004]; Matter of Keeley v Jamestown City School Dist., 295 AD2d 876 [2002]). To this end, "the Board may accept or reject all or part of any medical evidence presented, as well as determine the weight to be given thereto" (Matter of Nappi v Bell Atl. Corp. /NYNEX, 284 AD2d 877 [2001] [citations omitted]).

In the present case, both the claimant's treating physician, Dr. Diwan, and the carrier's consultant, Dr. Alvarez, opined that the claimant's hip injury was consequential to her established back injury. As discussed above, while the record reflects that claimant had a pre-existing back condition which she did not disclose, the preponderance of the evidence nonetheless supports a finding that claimant's November 19, 2007, workplace accident either caused a new back injury, or acted on claimant's pre-existing back condition to make it disabling. Similarly, while there is evidence that claimant had prior complaints regarding her hips, the uncontradicted medical evidence supports a finding that claimant's fall and resulting hip fracture were a direct consequence of her established back injury.

Discretionary penalty under WCL § 114-a

"Workers' Compensation Law § 114-a(1) provides that a claimant will be disqualified from receiving compensation attributable to a false statement or representation of a material fact made for the purpose of obtaining wage replacement benefits. Any compensation already paid to a claimant which is directly attributable to a claimant's misrepresentations must be rescinded by the Board. The Board also has the discretionary authority to disqualify the claimant from receiving any future wage compensation benefits regardless of whether or not the claimant is subject to the mandatory penalty, even if the claimant has suffered a compensable injury. In addition, the Board may subject the claimant to an additional penalty up to the amount directly attributable to the false statement or representation" (Matter of Church v Arrow Elec., Inc., 69 AD3d 983 [2010] [internal quotation marks and citations omitted]).

In the present case, the claimant had experienced significant back, neck, and hip complaints for several years prior to her 2007 work injury. The claimant was first diagnosed with osteopenia of the lumbar spine and hip in 2001. In 2003, an MRI scan of the claimant's back, and a DEXA scan of the claimant's back and hip were performed. In 2004, the claimant underwent x-rays and MRIs of her lumbar and cervical spines, as well as DEXA scans of her lumbar spine and hips. In 2005, the claimant was examined by her treating physician for neck and back pain, for which the doctor ordered x-rays. In April and May of 2007, a few months before the claimant's work accident, she sought treatment for back, hip and neck pain. The extensive tests performed indicate that the claimant suffered significant ongoing problems.

Despite this history, the claimant did not advise her treating physicians of any prior problems. She also affirmatively stated to the carrier's consultants at no less than six independent medical examinations that she did not have any prior problems with her back, neck or hips. Finally, the claimant denied under oath that she had ever had any problems, diagnostic tests, or past treatment regarding her back, hip or neck.

The evidence in the record strongly supports the imposition of a discretionary penalty. The claimant repeatedly misrepresented her past medical history. She not only failed to advise her treating physicians of her significant prior back, hip, and neck problems, she affirmatively lied to the carrier's consultants, and perjured herself before the WCLJ. Furthermore, the claimant sought to amend the claim to include a neck injury, which from the medical records was clearly pre-existing. While a discretionary penalty is, by its very nature, not legally required, the claimant's dishonest conduct supports the imposition of such a penalty to ensure that the claimant does not benefit from her fraudulent actions.

CONCLUSION