The Full Board, at its meeting held on January 15, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed February 27, 2012.
The issue presented for Mandatory Full Board Review is whether the record requires further development on the issue of whether the claimant sustained a new accident on July 8, 2010, or an exacerbation of a prior injury.
The Workers' Compensation Law Judge (WCLJ) found that claimant sustained an accidental injury on July 8, 2010, established the claim for the right shoulder and made awards.
The Board Panel majority affirmed the WCLJ's decision.
The dissenting Board Panel member found that at this juncture, the record contains insufficient evidence to support the WCLJ's finding of a causally related right shoulder injury on July 8, 2010. The dissent found that the case should be continued for further development based upon a completed medical record.
The carrier filed an application for Mandatory Full Board Review on March 26, 2012. The claimant filed a rebuttal on April 26, 2012.
Upon review, the Full Board votes to adopt the following findings and conclusions.
In a C-3 (Employee's Claim) filed July 21, 2010, the claimant, a Field Service Technician, stated that on July 8, 2010, he injured his right shoulder lifting a wooden ladder. The carrier controverted the claim.
The earliest report of medical treatment is a C-4 (Doctor's Initial Report) by Dr. Suarez based on a July 14, 2010, examination. Dr. Suarez noted in the C-4 that on July 8, 2008, claimant "was lifting something at his job when he experienced pain in the right shoulder." In the attached narrative report, Dr. Suarez stated that claimant's "job involves a lot of physical labor and he complains about lifting on the job. On July 9, 2010 (sic), he experienced pain in his right shoulder. Now, he has pain on range of motion of the shoulder." Dr. Suarez also stated that claimant "has had problems in the past. Now, the pain is exacerbated. He cannot work."
In an IME report dated October 12, 2010, the carrier's consultant, Dr. Seslowe diagnosed the claimant with a resolving strain of the AC joint of the right shoulder. Dr. Seslowe did not offer an opinion as to a causal relationship.
The claimant, who was then unrepresented, testified on November 2, 2010, that he worked for the employer for 12 years. On July 8, 2010, he injured his right shoulder when he went to pick up a heavy wooden ladder and pulled his shoulder. Claimant then testified:
"This is a re-injury of the first time I got hurt. I went about this whole case wrong. I should have got a lawyer and go on comp when it first happened. I tried to be nice to my boss and not cause problems and this is what I get."
(Transcript, 11/2/10 Hearing, p.3).
Claimant testified that the initial injury occurred while he was picking up a heavy ladder with two other people and pulled his "shoulder real bad" (p. 3). He saw Dr. Suarez after the initial injury and told the doctor he was injured at work, but claimant "tried to be a nice guy and put [the treatment] on my own insurance" (p. 3). He could not recall when the initial injury occurred, but estimated that it occurred approximately two months prior to his July 8, 2010, injury. He was out of work "for a couple of days" as a result of the initial injury (p. 7). Following the initial injury he underwent an MRI of his shoulder and went to physical therapy; Dr. Suarez told him he had "some kind of tear" (p. 7). He told his employer about his initial injury and they told him not to pick up any ladders; however, it was impossible for him to do his job without picking up ladders. He has not returned to work since his July 8, 2010, accident. The owner of the employer has advised him that it would find light duty work for him.
The owner of the employer testified on November 2, 2010, that he provided a helper for claimant because of his age, so he would not have to lift ladders. He was not aware if claimant had sustained an injury prior to July 8, 2010. On cross-examination, the owner stated, "I am not saying [claimant] didn't pick up a ladder. [I'm] saying I told him not to do that" (p. 25-26).
By a decision filed November 5, 2010, the WCLJ established the claim for a work-related injury involving the right shoulder which occurred on July 8, 2010, set the claimant's average weekly wage at $825.00, and, among other findings, directed awards from July 9, 2010, to November 3, 2010.
The carrier sought administrative review of the WCLJ's November 5, 2010, decision. Claimant retained counsel subsequent to the November 2, 2010, hearing.
"It 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  [citations omitted]).
In the present case, the record clearly reflects that the claimant sustained a work-related injury to his right shoulder on July 8, 2010. The claimant credibly testified that he injured his right shoulder on July 8, 2010, when he went to pick up a large heavy wooden ladder. While the claimant testified that he suffered a prior injury to the same shoulder, he also testified that he missed only "a couple of days" as a result of the injury before returning to work. The record reflects that the claimant's second accident acted upon his pre-existing condition to cause a disability which did not previously exist. "[T]he fact that the injury relates to a preexisting condition will not preclude the claimant from obtaining relief where it is demonstrated that the claimant's employment exacerbated the condition …" (Matter of Ochsner v New Venture Gear, 273 AD2d 715 ).
Therefore, the Full Board finds that a preponderance of the evidence in the record supports a finding that claimant sustained a compensable work-related injury that occurred on July 8, 2010, and that restoring the case for further development is not warranted.
ACCORDINGLY, the WCLJ decision filed on November 5, 2010, is AFFIRMED.