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Case # G0007315
Date of Accident: 12/22/2008
District Office: Hauppauge
Employer: Feldman Wood Product
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 63568117-129
Date of Filing of Decision: 08/21/2013
Claimant's Attorney: Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano LLP
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board at its meeting on July 16, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel memorandum of decision (MOD) filed September 17, 2012.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether this claim should be established for an exacerbation of the claimant's pre-existing left knee and left ankle conditions; and
  2. whether the claimant violated Workers' Compensation Law (WCL) § 114-a by knowingly making a false statement or representation of material fact for the purposes of obtaining workers' compensation benefits.

The Workers' Compensation Law Judge (WCLJ) found that the claimant did not violate WCL § 114-a, and established the claim for an exacerbation of the claimant's pre-existing left knee and left ankle conditions.

The Board Panel majority reversed the WCLJ's decision and disallowed the claim. The majority also found that the claimant made misrepresentations of material fact in order to obtain compensation benefits in violation of WCL § 114-a when he denied that gout had affected his left ankle and testified that he could not remember if he treated for gout in 2008.

The dissenting Board Panel member would have affirmed the WCLJ.

Claimant filed an application for Mandatory Full Board Review on October 15, 2012.

The carrier, State Insurance Fund (SIF), filed a rebuttal on November 14, 2012.

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

FACTS

The claimant, a truck driver, filed a C-3 (Employee Claim) on June 8, 2009, in which he alleged that he injured his left knee and left ankle when he slipped on ice on December 22, 2008. The claimant indicated that he provided oral notice of his injury to the dispatcher on the alleged date of accident. It is noted that the claimant did not provide an answer to the following question on the C-3: "Do you remember having another injury to the same body part or a similar illness?" The claimant's signature is dated January 23, 2009.

In medical reports dated December 31, 2008, and January 14, 2009, Dr. Erlanger, the claimant's orthopedist, diagnosed the claimant with a sprained left ankle and a pre-existing torn discoid lateral meniscus of the left knee. The reports state that the claimant "fell on ice on December 22, 2008, injuring his left ankle and left knee," but do not indicate that the accident was work related.

In a C-7 (Notice that Right to Compensation is Controverted) form filed on October 5, 2009, SIF raised the issues of prima facie medical evidence and accident arising out of and in the course of employment.

At a hearing held on January 26, 2010, the claimant acknowledged that he had a prior left knee and left ankle condition, advised SIF that he had treated with Drs. Erlanger and Webster, and signed a HIPAA release form.

At a hearing held on March 11, 2010, the claimant testified that he slipped on ice and injured his left ankle on December 22, 2008, while making a delivery for the employer. He stated that he advised the manager on December 23, 2008, that he had injured his ankle on the previous day. The claimant believed that he treated with a physician on the following day. The claimant explained that he was diagnosed with gout in the great toe of both feet a "few years ago," but he could not recall the last time he was treated for the condition. He did not remember whether he was treated for gout in 2008, either. The claimant stated that he takes medication for the condition, "but it is not frequent." The claimant denied that gout had ever affected his left ankle. He testified that the employer filed for disability benefits on his behalf in 2008, but the application was denied.

The claimant's manager testified on March 11, 2010, that if "anything at all" occurred during a delivery, the drivers were advised that they should notify the office and indicate such on the "run sheet." The manager explained that he did not receive a call from the claimant on December 22, 2008. The claimant worked his entire shift on December 23, 2008, but did not show up for work on December 24, 2008. The business was closed from December 24, 2008, to January 1, 2009. On January 2, 2009, the manager called the claimant, who informed him that he had a "problem with the gout." In the first or second week of January, the manager was then advised that the claimant was alleging that he had sustained a work-related injury. The manager explained that this prompted an argument between him and the claimant about why the claimant was trying "to change things."

The president of the company also testified on March 11, 2010, that drivers often make "notations" on manifest reports, the forms used by drivers to track their deliveries. The claimant's December 22, 2008, manifest report did not contain a note regarding the alleged injury. The claimant's December 23, 2008, manifest report indicates that he called the office and spoke with the manager at 9:00AM. The president testified that the dispatcher advised him that the manager had "handled the calls, the conversations" regarding the claimant's alleged work-related accident.

The claimant testified for a second time on March 11, 2010, that he advised the dispatcher of his work-related injury in person on December 22, 2008, upon returning from his deliveries. According to the claimant, the dispatcher responded: "Oh that's okay."

In a reserved decision filed on April 30, 2010, the WCLJ established the claim for injuries to the claimant's left ankle and left knee.

In a June 4, 2010, RFA-2 (Carrier's Request for Further Action), SIF raised the issue of a WCL § 114-a violation, stating: "The medical record indicates that [the claimant] had a prior left ankle and left knee injury, but when asked when he first treated for his left ankle he made no disclosure of the prior injury and treatment." In support, SIF provided a November 3, 2008, report by Dr. Toledano, the claimant's orthopedic surgeon, in which he indicated that the claimant had complaints of "left knee pain and swelling." An examination of the claimant's left knee revealed a "moderate effusion," tenderness, and no erythema. Dr. Toledano noted that the claimant had a "long history of gout" and opined that his left knee pain was "most likely due to gout." The doctor administered a cortisone injection to the claimant's left knee and advised the claimant to obtain an MRI if his symptoms did not improve.

In a decision filed on July 19, 2010, for a July 12, 2010, hearing, the WCLJ denied the carrier's request for further action on the issue of a WCL § 114-a violation and stated: "RFA-2 is a collateral attack on judgment in Reserved Decision filed on 4/30/10. Proper course of action for [SIF] is to file RB-89 appeal of Reserved Decision."

SIF filed an RB-89 (Application for Board Review) on August 18, 2010, in which it requested review of the April 30 and July 19, 2010, decisions "in the interests of justice." SIF asserted that the claimant made material misrepresentations "concerning his gout and pre-existing injuries" in violation of WCL § 114-a. SIF argued that the claimant had "significant left knee and left ankle injuries due to gout less than two months before the 12/22/08 occurrence," such that his testimony that he could not recall when he last treated for gout and his assertion that gout only affected his great toes was not credible. SIF contended that the claim should be disallowed or, in the alternative, "the claimant should be found to have violated [WCL § 114-a] and be found to be ineligible for compensation and medical benefits for this claim."

Accompanying SIF's application was a November 17, 2008, MRI report of the claimant's left knee that notes the presence of a small oblique tear in the posterior horn of the lateral meniscus, a sprain of the medial gastrocnemius myotendinous, and a mild focal chondromalacia within mild to moderate degenerative fibrocystic change at the apex of the trochlear groove. SIF also provided a medical narrative report dated November 18, 2008, in which Dr. Steinvurzel, the claimant's orthopedic surgeon, indicated that the claimant had left knee pain and "severe pain in the left ankle," and was ambulating with a crutch. The doctor diagnosed the claimant with "possible gouty arthropathy" and stated that the claimant had a "borderline high serum uric acid level." Dr. Steinvurzel administered a cortisone injection to the claimant's left ankle.

The claimant filed an RB-89.1 (Rebuttal of Application for Board Review) on September 7, 2010, in which he argued that the WCLJ's decisions should be affirmed in their entirety, as the claimant acknowledged his pre-existing injuries at the hearing held on January 26, 2010. The claimant asserted that his inability to remember when he last treated for gout at the March 11, 2010, hearing does not constitute a material misrepresentation in violation of WCL § 114-a.

In its March 16, 2011, decision, the Board Panel exercised its discretion to consider SIF's untimely application for review of the April 30, 2010, WCLJ decision. The Board Panel rescinded, without prejudice, the April 30, 2010, and July 19, 2010, WCLJ decisions, determined that the record required further development on the issues of causal relationship and a WCL § 114-a violation, and directed the parties to submit deposition transcripts of Drs. Erlanger, Toledano, and/or Steinvurzel.

Dr. Erlanger testified at a deposition held on April 15, 2011, that he first treated the claimant on December 24, 2008. Dr. Erlanger explained that his partner performed a "gout work-up" on the claimant in November 2008. A physical examination of the claimant's left knee on December 24, 2008, revealed a mild effusion, "some fluid," a limited range of motion, tenderness, and swelling. The doctor opined that the claimant aggravated a pre-existing tear in the lateral meniscus of his left knee and strained his left ankle. Dr. Erlanger also treated the claimant on December 31, 2008, January 14, 2009, January 30, 2009, and March 17, 2010. A March 17, 2010, examination of the claimant's left knee revealed no fluid, a full range of motion, "some lateral tenderness, some pain with rotation and the knee was stable." The claimant's left ankle was tender, but stable and not swollen.

Upon cross-examination, Dr. Erlanger testified that he had not treated the claimant prior to December 24, 2008, but that his partners, Drs. Toledano and Steinvurzel, had. The doctor explained that the claimant did not advise him that his injury occurred at work until January 30, 2009. Dr. Erlanger testified that the claimant's uric acid levels were not elevated on December 24, 2008, such that his work-up for gout was negative. The doctor stated that gout symptoms may "come and go" and that "the uric acid can go up and down." With respect to whether the claimant's ankle swelling was consistent with gout, Dr. Erlanger stated: "Not usually. I mean, it's possible." The doctor testified that he was not aware that the claimant had treated for left ankle symptoms prior to December 22, 2008. Dr. Erlanger explained that gout could cause restrictions in ranges of motion.

Dr. Toledano testified at a deposition held on May 17, 2011, that he examined the claimant once on November 3, 2008. The doctor explained that October 27, 2008, lab results revealed a high level of uric acid in the claimant's system. An examination of the claimant's left knee on November 3, 2008, revealed moderate effusion, tenderness, and a limited range of motion. An x-ray of the claimant's left knee revealed mild arthritis. Dr. Toledano opined that gout could cause a painful effusion in the knee. The doctor explained that the small meniscus tear revealed by the November 17, 2008, MRI of the claimant's left knee did not alter his opinion that the claimant's symptoms were potentially due to gout.

Upon cross-examination, Dr. Toledano testified that if the claimant's "pain increased after a new injury," then the claimant's pre-existing left knee condition was exacerbated. The doctor stated that the claimant did not complain of left ankle pain during the November 3, 2008, examination.

Dr. Steinvurzel also testified at a deposition held on May 17, 2011, that he examined the claimant once on November 18, 2008. The doctor explained that a physical examination of the claimant's left ankle revealed significant tenderness and a limited range of motion. X-rays of the claimant's left ankle were "essentially normal." With respect to the cause of the claimant's left ankle symptoms, Dr. Steinvurzel stated: "Given the history of gout and that he was currently being treated for gout in the knee, that was a likely possibility." The doctor explained that a trauma such as slipping on ice could exacerbate the problem of an inflamed joint, although it "wouldn't make the gout itself worse."

In a decision filed on June 30, 2011, the WCLJ determined that the claimant did not violate WCL § 114-a, and established the claim for an exacerbation of the claimant's pre-existing left knee and left ankle conditions.

LEGAL ANALYSIS

Establishment of the Claim

It is "axiomatic that a claimant bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence" (Matter of Williams v Colgate Univ., 54 AD3d 1121 [2008] [citations omitted]). Such medical opinions need not be expressed with absolute or reasonable certainty (Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890 [2009]); a "medical opinion, with a supporting medical hypothesis, is sufficient to support the Board's finding of a causal relationship" (Van Patten v Quandt's Wholesale Distribs., 198 AD2d 539 [1993]). 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]).

Initially, the claimant's credibility was called into question when he failed to indicate on his C-3 form that he had previously sustained injuries to the same body parts prior to his alleged work-related accident, despite the fact that an MRI of the claimant's left knee revealed that he had a meniscus tear as of November 17, 2008. Further, the claimant's manager testified that the claimant initially advised him that his condition was caused by gout. The manager explained that the claimant then advised him in early January 2009, that he was alleging that he was injured while working on December 22, 2008. The claimant visited Dr. Erlanger on December 24, 2008, two days after his alleged work-related accident. However, the doctor explained that the claimant did not advise him until January 30, 2009, that his alleged accident had occurred at work. Although Dr. Erlanger opined that the claimant aggravated the pre-existing tear in the lateral meniscus of his left knee and strained his left ankle, the doctor was not aware that the claimant had treated for left ankle symptoms prior to December 22, 2008.

The medical evidence prior to the claimant's alleged date of accident supports a finding that the claimant's disability was not attributable to a work-related injury on December 22, 2008. The claimant had a "moderate" effusion and tenderness in his left knee on November 3, 2008, and a meniscus tear in his left knee on November 17, 2008. The claimant's range of motion in his left ankle was limited on November 18, 2008, and the pain was such that the claimant required a crutch to ambulate. As of December 24, 2008, the claimant's left knee effusion was "mild," and his symptoms of tenderness and restricted range of motion in his left ankle remained, although he no longer required a crutch to ambulate. Moreover, Dr. Toledano testified that gout could cause a painful effusion in the knee and Dr. Steinvurzel testified that tenderness and a limited range of motion could be caused by gout. Dr. Erlanger also testified that gout could cause swelling and restrictions in range of motion, that "uric acid can go up and down," and that gout symptoms may "come and go."

Furthermore, the claimant's manager testified that if "anything at all" occurred during a delivery, the drivers were advised that they should notify the office and indicate such on the "run sheet." Although the claimant's December 23, 2008, manifest report indicates that he called the employer's office and spoke with a manager at 9:00 AM, his December 22, 2008, manifest report does not indicate that the claimant slipped and sustained an injury while working.

Therefore, the Full Board finds, based on a preponderance of the evidence, that claimant did not sustain a compensable accidental injury.

WCL § 114-a

Workers' Compensation Law § 114-a(1) provides: "If for the purpose of obtaining compensation pursuant to [WCL § 15], or for the purpose of influencing any determination regarding any such payment, a claimant knowingly makes a false statement or representation as to a material fact, such person shall be disqualified from receiving any compensation directly attributable to such false statement or representation." A material misrepresentation can be based upon an omission of a relevant fact (Matter of Imperial Pools, 2012 NY Wrk Comp 29018869). "A material omission is the false denial of a previous injury to the injured area for which compensation is sought, and such omission is not only significant but also material" (id.).

Pursuant to WCL § 114-a(1), "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]).

The claimant testified on March 11, 2010, that he was diagnosed with gout, but that it was limited to the great toe of either foot. The claimant stated that he could not recall the last time he was treated for gout, or if he had treated for gout in 2008. The claimant specifically denied that gout had ever affected his left ankle. The medical evidence establishes that the claimant was treated for symptoms associated with gout twice in November 2008, approximately one month prior to his alleged work-related accident. On November 3, 2008, the claimant visited Dr. Toledano, whose report indicates that an examination of the claimant's left knee revealed a "moderate" effusion and tenderness. Dr. Toledano opined that the claimant's symptoms were "most likely due to gout" and administered a cortisone injection to the claimant's left knee. On November 18, 2008, the claimant visited Dr. Steinvurzel for severe left ankle pain. Dr. Steinvurzel indicated that the claimant was using a crutch to ambulate, diagnosed the claimant with "possible gouty arthropathy," and noted that his serum uric acid level was "borderline high." Dr. Steinvurzel administered a cortisone injection to the claimant's left ankle. The doctor testified that the tenderness and limited range of motion in the claimant's left ankle was likely caused by gout. Therefore, the claimant's testimony on March 11, 2010, that gout never affected his left ankle and that he could not recall if he had treated for gout in 2008, was not credible. These statements constitute knowing misrepresentations of material fact in violation of WCL § 114-a.

Therefore, the Full Board finds, based on a preponderance of the evidence in the record, that the claimant knowingly made material misrepresentations in violation of WCL § 114-a. Although WCL § 114-a provides for mandatory and discretionary penalties, because the claim is disallowed, the issue of penalties pursuant to WCL § 114-a is moot.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on June 30, 2011, is REVERSED; this claim is disallowed.