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Case # 00812371
Date of Accident: 03/10/2008
District Office: NYC
Employer: Bombardier Transportation
Carrier: Pacific Employers Ins. Co.
Carrier ID No.: W167001
Carrier Case No.: 001903-003303-WC-01
Date of Filing of Decision: 03/07/2013
Claimant's Attorney: Stefano A. Filippazzo, P.C.
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board at its meeting on January 15, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel memorandum of decision filed April 12, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claim should be amended to include an injury to the claimant's neck.

In a decision filed on October 12, 2010, the Workers' Compensation Law Judge (WCLJ) determined that the claimant did not sustain a causally related neck injury.

The Board Panel majority modified the WCLJ's decision to amend the claim to include a causally related injury to the claimant's neck, based upon the testimony of the claimant's physicians.

The dissenting Board Panel member credited the carrier's consultant and determined that the neck claim should be disallowed.

In its application for Mandatory Full Board Review, the carrier asserts that the neck claim should be disallowed and the opinion of its consultant credited, as the claimant did not complain of neck pain until one and one-half years after his work-related accident.

In his rebuttal, claimant argues that the majority opinion should be affirmed in its entirety.

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

FACTS

This case was initially established for injuries to the claimant's back, left knee, and left shoulder that occurred on March 10, 2008, when he tripped and fell at work. The claim was later amended to include consequential depressive disorder.

In a decision filed on November 30, 2009, the WCLJ found prima facie medical evidence of a causally related neck injury.

At a deposition held on June 7, 2010, Dr. Zolan, the carrier's consultant, testified that he examined the claimant on five occasions: May 29, 2008; October 30, 2008; April 2, 2009; August 20, 2009; and January 28, 2010. The doctor testified that the claimant first complained of neck pain on January 28, 2010. Dr. Zolan did not examine the claimant's spine prior to January 28, 2010. An examination of the claimant's neck revealed normal movement, no spasms, and no tenderness. Dr. Zolan testified that he could not find any evidence of an injury to the claimant's neck.

Dr. Delman, the claimant's physician, was deposed on June 9, 2010. Dr. Delman testified that he first treated the claimant on March 19, 2008. On June 17, 2009, the doctor opined that the claimant's shoulder pain may be related to a neck injury. Dr. Delman diagnosed the claimant with possible cervical radiculopathy contributing to left shoulder pain. The doctor explained that neck and shoulder injuries "overlap" and that one may have an isolated neck injury that only causes pain in the arm.

Upon cross-examination, Dr. Delman testified that his June 17, 2009, examination report did not indicate an injury to the claimant's neck. The doctor stated that on June 17, 2009, an examination of the claimant's cervical spine revealed a significant loss of range of motion and tenderness and spasm of the claimant's neck and shoulder. Dr. Delman explained that "active healing" may account for the 16 month delay in the onset of the claimant's neck symptoms.

Dr. Sclafani, the claimant's orthopedic surgeon, was deposed on August 18, 2009. Dr. Sclafani testified that he began treating the claimant on March 14, 2008. The doctor explained that the claimant first complained of neck pain on September 16, 2009. An examination of the claimant's neck at that time revealed tenderness, limited motion, and muscle spasm. Dr. Sclafani diagnosed the claimant with a cervical sprain and opined that the claimant's neck injury was causally related to his March 10, 2008, accident. With regard to the delay between the claimant's accident and the discovery of his neck injury, the doctor explained that he "was concentrating mostly on [the claimant's] left shoulder" and "oftentimes neck pain and shoulder pain can be confusing."

Upon cross-examination, Dr. Sclafani testified that the claimant first complained of left shoulder pain on March 24, 2008. The doctor stated that it was possible that the claimant's neck pain was due to his shoulder injury. Dr. Sclafani testified that following his September 16, 2009, examination, his reports dated November 16, 2009, and January 18, 2010, do not specifically refer to the claimant's neck. Dr. Sclafani opined within a reasonable degree of medical certainty that the claimant's neck injury was causally related to his March 10, 2008, accident, "due to the fact that [the claimant] has no other history of trauma to his neck." On redirect examination, Dr. Sclafani testified that the claimant's complaints of left shoulder pain on March 24, 2008, could have been due to a neck injury.

Following summations at a hearing held on October 6, 2010, the WCLJ found that the year to year and one-half interval between the claimant's accident and his first complaints of neck pain constituted an excessive delay. The WCLJ found that the claimant did not suffer a causally related neck injury. The resulting decision was filed on October 12, 2010.

LEGAL ANALYSIS

"[T]he resolution of conflicting medical opinions is within the province of the Board …" (Matter of Ciafone v Consolidated Edison of N.Y., 54 AD3d 1135 [2008]; see Matter of Kot v Beth Ameth Home Attendant Serv., 70 AD3d 1114 [2010]). Furthermore, it is well settled that in evaluating the medical evidence presented, the Board is not bound to accept the testimony or reports of any one expert, either in whole or in part, but has the discretion to choose those it credits and those it does not (see Matter of Nappi v Bell Atl. Corp./NYNEX, 284 AD2d 877 [2001]; Matter of Provenzano v Pepsi Cola Bottling Co., 30 AD3d 930 [2006]). Thus, questions of credibility, reasonableness, and relative weight to be accorded to conflicting medical opinions are questions of fact that come within the exclusive province of the Board (see Matter of Berkley v Irving Trust Co., 15 AD3d 750 [2005]).

The Full Board finds, upon review of the evidence of record, that the claimant sustained a causally related neck injury. Although Dr. Zolan, the carrier's consultant, testified that a January 28, 2010, examination of the claimant's cervical spine did not reveal evidence of a neck injury, Drs. Delman and Sclafani credibly testified that examinations of the claimant's neck revealed muscle spasm, tenderness, and a limited range of motion.

Dr. Delman credibly testified that a June 17, 2009, examination of the claimant's cervical spine revealed a significant loss of range of motion, tenderness, and muscle spasm. Dr. Delman reasonably explained that neck and shoulder injuries "overlap," and that one may have an isolated neck injury that only causes pain in the arm. Furthermore, Dr. Delman stated that the healing process could account for the time lapse between the claimant's March 10, 2008, accident and the onset of his neck symptoms.

Dr. Sclafani also credibly testified that an examination of the claimant's neck revealed tenderness, limited motion, and muscle spasm. Dr. Sclafani diagnosed the claimant with a cervical sprain and opined within a reasonable degree of medical certainty that the claimant's neck injury was causally related to his March 10, 2008, work-related accident. He reached this conclusion in part based on the fact that the claimant provided no other history of trauma involving the neck. The doctor explained that a neck injury could be responsible for the claimant's complaints of left shoulder pain on March 24, 2008. With regard to the delay between the claimant's accident and the discovery of his neck injury, Dr. Sclafani testified that he had been concentrating on treating the claimant's left shoulder and that "oftentimes neck pain and shoulder pain can be confusing."

Based upon the above, the Full Board finds that the claimant sustained a neck injury as a result of his March 10, 2008, work-related accident.

CONCLUSION

Accordingly, the WCLJ decision filed on October 12, 2010, is MODIFIED to amend the claim to include a causally related injury to the claimant's neck. No further action is planned by the Board at this time.