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Case # 00836092
Date of Accident: 04/30/2008
District Office: NYC
Employer: Field Family Associates LLC
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 62944020-327
Date of Filing of Decision: 04/04/2013
Claimant's Attorney: Terry Katz & Associates, PC
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board at its meeting on February 26, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision (MOD) filed May 24, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the instant claim for a neck injury is barred by Workers' Compensation Law (WCL) § 28.

The Workers' Compensation Law Judge (WCLJ) amended the claim to include an injury to the claimant's neck, finding that the carrier, State Insurance Fund (SIF), made an advance payment of compensation regarding the neck, and directed no further action.

The Board Panel majority reversed the WCLJ's decision, finding that the claim for a causally related neck injury is barred pursuant to WCL § 28, as an advance payment of compensation was not made by SIF when it paid for medical treatment involving the claimant's neck.

The dissenting Board Panel member concluded that SIF made an advance payment of compensation when it paid for the causally related treatments to the claimant's neck, and therefore the claim for the neck is not barred by WCL § 28.

In his application for Mandatory Full Board Review, the claimant asserts that SIF knowingly paid for treatment for the claimant's causally related neck injury, and therefore, waived its WCL § 28 defense.

In rebuttal, SIF asserts that the majority opinion of the Board Panel is correct and should be affirmed in its entirety.

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

FACTS

In a decision filed on January 13, 2009, the WCLJ concluded that the claimant sustained a work-related back injury on April 30, 2008, and made awards. The decision was amended on January 27, 2009, to modify the award rate.

A C-4.2 (Doctor's Progress Report) filed by the claimant's treating medical provider, Dr. Nagendra, on May 14, 2010, for an April 19, 2010, date of service, notes tenderness of the neck and paracervical region, and thereafter diagnoses the claimant with a causally related (see Part E [Doctor's Opinion], 1. and 2.) cervical sprain/strain. The C-4.2 also indicates treatment to the claimant's established back. There is no indication in the record that SIF objected to this bill.

A C-4.2 filed by Dr. Nagendra on June 4, 2010, for a May 17, 2010, date of service, notes tenderness of the neck and paracervical region, and thereafter diagnoses the claimant with a causally related (see Part E [Doctor's Opinion], 1. and 2.) cervical sprain/strain. The C-4.2 also indicates treatment to the claimant's established back. There is no indication in the record that SIF objected to this bill.

A C-4.2 filed by Dr. Nagendra on July 2, 2010, for a June 21, 2010, date of service, notes tenderness of the neck and paracervical region, and thereafter diagnoses the claimant with a causally related (see Part E [Doctor's Opinion], 1. and 2.) cervical sprain/strain. The C-4.2 also indicates treatment to the claimant's established back. An attached medical narrative authored by Dr. Nagendra notes the claimant's complaints of persistent neck pain and stiffness, a physical examination that revealed tenderness in the neck region, and a conclusion that the claimant has a cervical neck sprain/strain. There is no indication in the record that SIF objected to this bill.

C-4.2s filed by Dr. Nagendra on September 2, 2010 (July 19, 2010, date of service), September 3, 2010 (August 16, 2010, date of service), October 1, 2010 (September 20, 2010, date of service), November 12, 2010 (October 18, 2010, date of service), December 24, 2010 (November 22, 2010, date of service), and March 25, 2011 (February 21, 2011, date of service) also indicate treatment for a causally related (see Part E [Doctor's Opinion], 1. and 2.) cervical neck strain/sprain. The C-4.2s also indicate treatment to the claimant's established back. There is no indication in the record that SIF objected to any of these bills.

Dr. Nagendra also filed C-4.2s on January 6, 2011 (December 20, 2010, date of service) and March 2, 2011 (January 24, 2011, date of service) for causally related (see Part E [Doctor's Opinion], 1. and 2.) neck treatment. The C-4.2s also indicate treatment to the claimant's established back. While SIF filed an EC-8.4 (Notice to Health Care Provider and Injured Worker of a Carrier's Refusal to Pay All [or a portion of] a Medical Bill due to Valuation Objection[s]) form with respect to these two dates of treatment, specifically noting that the amount of the bill is excessive or not in accordance with pertinent New York State Medical Fee Schedule, there is no specific indication in the record of an objection to Dr. Nagendra's treatment with respect to the claimant's neck on these two dates.

In a decision filed on April 14, 2011, for an April 11, 2011, hearing, the WCLJ amended the instant claim to include an injury to the claimant's neck, finding that SIF made an advance payment of compensation regarding the neck, made awards and directed no further action.

LEGAL ANALYSIS

Under WCL § 28, remuneration or payments by an employer or its carrier in the form of wages, medical treatment, or other compensable expenses constitute advance payments that trigger the exception to the two-year claim-filing requirement, provided that the payments were made in recognition or acknowledgment of liability under the Workers' Compensation Law (see Matter of Schneider v Dunkirk Ice Cream, 301 AD2d 906 [2003]). When payments are made without regard to the cause of injury, there can be no finding of advance payment (see Matter of Kaschak v IBM Corp., 256 AD2d 830 [1998]).

An advance payment can occur at any time, and need not be made within two years of the accident in order to constitute a waiver of WCL § 28 (Matter of Hamilton v Village of Lynbrook, 284 NY 613 [1940]; Matter of Bugliari v NYS Colleges at Cornell, 252 AD2d 713 [1998]). However, once the WCL § 28 defense is properly raised, any subsequent payment with a recognition of potential liability will not be sufficient to constitute a waiver (Homan, 119 AD2d 965 [1986]).

The Full Board finds, upon review of the evidence of record, that the instant neck claim was not timely filed in accordance with WCL § 28. The claimant sustained a work-related back injury on April 30, 2008. The record reflects that the claimant did not raise the issue of a neck injury as a result of the April 30, 2008, incident until the April 11, 2011, hearing, which is clearly beyond the two year limitation period set forth in WCL § 28. While a medical report can constitute the filing of a claim, there are no medical reports in the file prior to April 30, 2010, indicating a neck injury. As such, the instant claim for a neck injury was not filed within the two year limitation period set forth in WCL § 28. The claimant therefore has the burden of demonstrating that SIF made an advance payment of compensation with respect to his neck injury.

The Full Board further finds that the claimant met his burden of demonstrating that SIF made an advance payment of compensation, and in the process waived its WCL § 28 defense. In this case, there are multiple medical reports from the claimant's doctor indicating that he treated the claimant for a neck injury. There is no indication that SIF objected to the payment of these bills arguing that the neck is not an established site. The record as developed indicates that SIF paid medical bills that detailed treatment for a neck injury on at least nine (and possibly 11) occasions without objection. This is not a situation in which SIF simply made an inadvertent payment of a medical bill on one occasion. While it is conceivable that SIF has payment records showing that some or all of these eleven treatments with Dr. Nagendra for the neck were not paid for, the record is now closed and SIF is foreclosed from producing such evidence at this time. SIF paid multiple medical bills with clear reference to treatment for a neck condition, and did so with recognition of liability, as the liability of SIF, the employer's compensation carrier, is limited to the payment of lost wage and medical benefits resulting from work-related injuries to the employees of its insured. As such, an advance payment of compensation was made, and SIF's WCL § 28 defense is hereby waived. However, since the claimant is not relieved of his burden of establishing his neck claim based on this finding, further development of the record is required on the issue of a compensable neck injury.

Based upon the above, the Full Board finds that the instant claim for a neck injury is not barred by WCL § 28.

CONCLUSION

Accordingly, the WCLJ decision filed on April 14, 2011, is MODIFIED to find the claim for a neck injury is not barred by WCL § 28, and that the matter is continued, as indicated above, to determine if the claimant's neck claim is compensable.