The Full Board, at its meeting held on April 16, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on July 27, 2012.
The issues presented for Mandatory Full Board Review are:
The Workers' Compensation Law Judge (WCLJ) amended the claim to include a consequential neck injury, awarded benefits at the temporary total for the period from June 20, 2011, to December 7, 2011, and directed the self-insured employer (SIE) to continue payments at the temporary total disability rate.
The Board Panel majority modified the WCLJ's decision to disallow the consequential neck injury claim and to reduce awards to the moderate rate. The Board Panel majority found that the medical evidence did not support the claimant's assertion that he fell and injured his neck due to his compensable back injury.
The dissenting Board Panel member found that the WCLJ's decision should be affirmed. The dissenting Board Panel member noted that the medical evidence from December 2010 stated that the claimant complained of radiating pain on the right side and found that this supported the claimant's assertion that his leg gave way causing him to fall.
In the claimant's application for Mandatory Full Board Review, he argues that the determination of the issues rests upon credibility, which is best determined by the WCLJ. The claimant further argues that the medical evidence shows that he was experiencing ongoing leg problems prior to his fall.
In rebuttal, the SIE argues that the claimant's allegation that he suffered a consequential neck injury is a contrivance intended to obtain benefits. The SIE further argues that Dr. Brown is not credible because he did not examine the claimant until after the neck injury and his opinions were based solely on the claimant's statements. Finally, the SIE argues that no medical examination findings indicate that the claimant suffered from any right leg weakness.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, a senior building maintenance supervisor, suffered a back injury on August 4, 2008, while loading lumber into a cart. The SIE did not controvert the claim.
Immediately following his injury, the claimant treated with his family physician, Dr. Montera, and orthopedic surgeon Dr. Cheney. At an examination on June 21, 2010, Dr. Cheney found that the claimant had decreased range of motion in his left hip. Dr. Cheney also noted that the claimant stated he was looking forward to retiring the following year. At an examination on December 10, 2010, Dr. Cheney noted that the claimant was having "increasing difficulties, primarily towards the right side and radiating down the right leg" in the form of "discomfort."
The claimant underwent epidural injections on January 25, 2011. The operative notes state that the claimant complained of radiating pain into the right leg. The notes do not mention any neck injury or leg weakness.
At an examination on March 17, 2011, Dr. Cheney noted that the claimant had significant improvement, although he was walking with a cane outside. Dr. Cheney continued to find the claimant 100% disabled and noted that the claimant stated he was considering retiring. Dr. Cheney's notes do not mention any neck injury.
The claimant was examined by Dr. Brown on April 15, 2011. Dr. Brown filed a report of that examination, which referenced only the claimant's back injury, noting left side radiation of pain. Dr. Brown diagnosed the claimant as suffering from lumbar spine pain syndrome with herniated nucleus pulposus and facet atrophy.
Dr. Brown also filed a letter addressed to the claimant's attorney, dated April 15, 2011, which was filed with the Board on June 20, 2011. Dr. Brown noted that the claimant had reported falling in the shower when his right leg gave way. The letter sets forth examination findings regarding the claimant's low back, including restricted motion and pain with bending and rotation, but does not note any findings regarding his cervical spine. However, Dr. Brown opined that the claimant suffered a consequential neck injury.
In a Notice of Decision (NOD) filed March 28, 2011, the WCLJ established the claim for an injury to the low back and set the claimant's average weekly wage at $824.64. The WCLJ also awarded the claimant benefits at the temporary total rate for the period from August 6, 2008, to August 8, 2008, and from December 10, 2010, to March 23, 2011, and directed the SIE to continue payments at that rate. The WCLJ found no compensable lost time or no medical evidence for the period from August 8, 2008, to December 10, 2010.
Claimant was examined by the SIE's orthopedic consultant, Dr. Berezin, on May 24, 2011. In his report, Dr. Berezin noted that claimant reported falling in the shower and injuring his neck in January 2011. Dr. Berezin concluded, based on his examination and a review of claimant's medical records, that claimant's fall and resulting neck injury were not causally related to his back injury, as "[t]here are no findings of significant neurologic deficit that would have resulted in his fall and subsequent neck injury."
In an NOD filed June 24, 2011, the WCLJ awarded benefits at the temporary total rate for the period from March 23, 2011, to June 20, 2011, and directed the SIE to continue payments at that rate. The WCLJ also found prima facie medical evidence for a consequential neck injury based upon an April 15, 2011, report of Dr. Brown and directed the parties to depose Dr. Brown and Dr. Berezin.
The claimant testified at a hearing on July 26, 2011, that he underwent testing for low back pain in 2002 or 2003, but did not undergo any treatment as a result. The claimant also stated that Dr. Cheney performed a surgical disc fusion in his neck in June 2005. The claimant testified that he wore a neck brace for six weeks following the surgery, but was released to full duty thereafter and did not have any continuing problems. The claimant stated that both of his legs gave out while he was entering the shower on January 21, 2011, and the claimant fell, hitting his head and shoulder on the shower wall with enough force to crack the wall. The claimant reported feeling a clicking sensation in his neck thereafter. He stated that he did not seek treatment for almost three months thereafter because his back condition was "bad" to the point that he had to cancel some doctor's appointments. The claimant also stated that he started treatment with Dr. Brown rather than Dr. Cheney because Dr. Brown was located closer to his house.
Dr. Brown testified by deposition of August 10, 2011, that he examined the claimant on three occasions: April 15, 2011, June 3, 2011, and July 29, 2011. The claimant advised Dr. Brown that his right leg gave way and he fell into the shower. Dr. Brown opined that, assuming the claimant's history was correct, the claimant suffered a neck injury consequentially related to his compensable back injury, and was 100% impaired. Upon cross-examination, Dr. Brown stated that he did not mention the neck in his April 15, 2011, medical report because he would not get paid for the examination due to the fact that the neck was not an established injury. Dr. Brown also noted that he did not examine the claimant's upper extremities.
The SIE's orthopedic consultant, Dr. Berezin, testified by deposition on September 7, 2011, that his examination of the claimant did not reveal any evidence of a neurological condition which would cause the claimant's leg to buckle or give out. Dr. Berezin opined that the claimant's neck injury was therefore not related to his compensable back injury.
In a reserved decision filed December 17, 2011, the WCLJ amended the claim to include a consequential neck injury and found the claimant to be temporarily totally disabled. The WCLJ awarded the claimant temporary total wage benefits for the period from June 20, 2011 to December 17, 2011 and directed the SIE to continue payments at that rate.
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 ; Matter of Pellerin v N.Y.S. Dept. of Corrections, 215 AD2d 943 , lv den 87 NY2d 806 , Matter of Scofield v City of Beacon Police Dept., 290 AD2d 845 ). "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 ; Matter of Trickel v Judski Assoc., 247 AD2d 778 ).
In the present case, the evidence supports the amendment of the claim to include a consequential neck injury. The claimant credibly testified that he injured his neck in January 2011 when he fell in his bathtub at home due to his leg giving out as a result of his compensable back injury. While the claimant had a prior neck injury, he testified that that neck injury had fully resolved following surgery, and the record does not contain any evidence indicating that the claimant had any ongoing neck disability as of January 2011.
The claimant's testimony that he suffered from leg problems due to his back injury is supported by the medical records. At an examination in December 2010, the claimant's treating orthopedist, Dr. Cheney, noted that the claimant was suffering from discomfort radiating in his right leg. Dr. Cheney recommended epidural steroid injections to relieve the symptoms, and the claimant underwent the injections on January 25, 2011.
Furthermore, the claimant's treating physician, Dr. Brown, opined that the claimant's neck injury was consequentially related to his compensable back injury. Dr. Brown testified that, based upon the claimant's history of his leg giving out as a result of his back injury, the neck injury was consequentially related, and the claimant suffers from a temporary total disability due to both his back and neck injuries.
Therefore, the preponderance of the evidence supports a finding that the claimant suffered a neck injury consequentially related to his compensable back injury and that the claimant is suffering from a temporary total disability as a result of his compensable back injury and consequential neck injury.
ACCORDINGLY, the WCLJ decision filed on December 7, 2011, is AFFIRMED. No further action is planned by the Board at this time.