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, duly filed and served on November 29, 2012.
The issue presented for Mandatory Full Board Review is whether the claimant's compensable back injury should be subject to apportionment.
The Workers' Compensation Law Judge (WCLJ) found no apportionment of claimant's claim to any prior back injuries.
The Board Panel majority agreed with the WCLJ's finding that apportionment is not appropriate in this case.
The dissenting Board Panel member found that apportionment is appropriate in this case "based upon the claimant's extensive pre-existing injuries, treatment and difficulties performing her job duties."
On December 28, 2012, the carrier filed an application for Mandatory Full Board Review, arguing that the WCLJ used the wrong legal standard to address the issue of apportionment in this case; that even when applying the incorrect legal standard, the facts suggest that apportionment should be appropriately applied in this case; and that the medical evidence supports a 50% apportionment to the claimant's pre-existing conditions.
On January 28, 2013, the claimant filed a rebuttal, arguing that the WCLJ appropriately found that apportionment should not be applied to this case.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On June 14, 2011, the claimant, then a 62 year old group home manager, injured her left calf at work when she tripped on a pocketbook causing an umbrella on top of the pocketbook to hit her on the back of the calf resulting in a muscle tear in her calf. The injury to claimant's calf caused claimant to experience problems with her low back. This case has been established for an injury to the claimant's left calf, and was later amended to include a consequential low back injury.
Claimant was initially treated for her leg injury by Dr. Alfred. In a medical report dated July 5, 2011, Dr. Alfred diagnosed the claimant with a significant hematoma and injury to the gastroc soleus muscle in her leg. In a medical narrative dated August 22, 2011, Dr. Alfred noted that "the claimant's altered gait is bothering her back which has been a chronic source of pain for the claimant for years."
Dr. Alfred referred the claimant to Dr. Dawodu, a pain management specialist, for the treatment of her worsening back condition. In a medical report dated December 1, 2011, Dr. Dawodu concluded that:
I do believe that this patient definitely has 100% causal relation from the injury to her current low back pain. This is based on the fact that this patient never really had any major back pain prior to the time of the injury despite the fact that she might have had minor degenerative changes in her back, but her back muscles were stable enough to be able to support her back, and therefore it is presumed that there is a causal relation between the injury and [ ] her current severe back pain.
During follow-up examinations with Dr. Dawodu on January 5, 2012, and February 6, 2012, the claimant continued to complain of severe low back pain radiating to her left leg, and associated weakness which required the claimant to use a cane for support. Dr. Dawodu recommended and administered epidural steroid injections, sent the claimant for "intensive physical therapy," and renewed the claimant's naproxen prescription. Dr. Dawodu continued to report that the claimant was 100% disabled, and that the claimant remained out of work.
In a Report of Independent Medical Examination (IME-4) dated November 7, 2011, Dr. Dudick concluded that:
…there was a causal relationship between the injury in question and the patient's complaints subsequent to the injury of June 14, 2011…With regard to the question of apportionment, records indicate the patient was under chiropractic care as late as April 11, 2011, prior to the reported injury of June 14, 2011. I would apportion the patient as 50:50 between the injury in question and her low back condition prior to the injury in question.
During a hearing on February 27, 2012, the claimant testified that she injured her back when she was working as a nurse's aide in New Jersey when she was 19 years old, and that she was out of work for a few months. The claimant further testified that she did not go back to her job as a nurse's aide and that she did not have ongoing treatment. The claimant testified that she injured her back on a number of occasions between her initial work-related back injury and the back injury at issue in this case, but that the injuries resulted in short periods of treatment and no significant lost time from work. The claimant further testified that between 1980 and 2010 she did not received any medical treatment for her back. According to the claimant, she fell on ice in February 2010, causing her to lose approximately one day from work and undergo chiropractic treatment for a brief period of time from March 2010 to April 2010. The claimant testified that she had no other treatment for her back from April 2010 to July 2011, and that she had not had surgeries on her back prior to June 2011. According to the claimant she was working in her regular capacity without any restrictions at the time of her accident on June 14, 2011. The claimant testified that she was mildly symptomatic prior to June 14, 2011, but that her symptoms became much more severe after the accident on June 14, 2011.
On cross-examination, the claimant stated that when she initially injured her back while working as a nurse's aide, she was paid a $450.00 settlement. The claimant acknowledged that she never went back to work as a nurse's aide, but stated that was because she wasn't able to find another job working as a nurse's aide. The claimant stated that on June 14, 2011, she was working as a House Manager for the employer and that one of the physical requirements of the job was lifting 40 to 50 lbs. The claimant conceded that she had trouble lifting 40 to 50 lbs., but noted that her job hardly ever required her to engage in such lifting.
In a notice of decision filed on March 1, 2012, the WCLJ found no apportionment of claimant's claim to any prior back injuries.
"[A]pportionment is inapplicable as a matter of law '[w]here the prior condition was not the result of a compensable injury and the claimant is able to effectively perform his or her job despite the preexisting condition' (Matter of Krebs v Town of Ithaca., 293 AD2d 883 [(2002), lv denied 100 NY2d 501 (2003)]). As explained long ago, this is so because 'apportionment applies only in cases where the prior condition constitutes "a disability in a compensation sense"' ([Krebs, 293 AD2d 883 (2002)], quoting Matter of Carbonaro v Chinatown Sea Food, [55 AD2d 756 (1976)]" (Matter of Johnson v Feinberg-Smith Assoc., Inc., 305 AD2d 826 ).
According to the Court, its "decision in Matter of Miller v Congel-Palenscar, Inc. (236 AD2d 645 ) neither establishes a countervailing rule to Matter of Carbonaro v Chinatown Sea Food and its progeny nor represents the development of irreconcilable lines of apportionment cases … [I]n Miller, both medical experts apportioned some of the claimant's current (i.e., 1989) disability in part to a prior compensable 1980 work-related injury, as well as to a prior noncompensable 1972 sledding accident ([Miller, 236 AD2d 647 (1997)]). Consequently, since part of that claimant's disability resulted from a prior compensable accident, the rule recognized in Carbonaro and progeny -- that apportionment is inapplicable as a matter of law if the prior condition resulted only from a noncompensable injury -- did not govern the Miller claimant. Inasmuch as the Board's finding in Miller that the claimant's disability was solely due to his 1989 accident was contrary to all of the medical testimony, [the Court] reversed the Board's nonapportionment finding and remitted for the purpose of developing the record and properly assigning an apportionment percentage to the current accident, the 1980 compensable injury and the 1972 noncompensable injury (id.). Miller, thus, is consistent with the principle that apportionment is a question of fact and may be appropriate where, in accordance with the medical proof, a claimant's disability is in full or in part attributable to a prior compensable injury, i.e., 'where the prior condition constitutes "a disability in a compensation sense"' (Johnson, 305 AD2d 826 , quoting Krebs, 293 AD2d 883 , quoting Carbonaro, 55 AD2d 756  [additional internal citations omitted]).
Here, the carrier argues that because claimant suffered a prior compensable back injury when she was 19 years old, the rule set forth in Carbonaro (55 AD2d 756 ) is inapplicable and apportionment of claimant's back disability is a factual issue to be determined based on the medical evidence. The carrier argues that because the only medical opinion on apportionment is the report of Dr. Dudick which apportioned claimant's disability equally between her pre-existing back injury and her work-related accident, liability should be apportioned based on Dr. Dudick's opinion.
However, the record contains no medical records concerning claimant's prior work-related back injury, which occurred more than 40 years before her current injury. Dr. Dudick does not mention claimant's prior work-related back injury in his report and did not review any medical reports concerning that injury. In his report, Dr. Dudick stated that claimant reported going to a chiropractor in 2011, prior to her work injury, due to a fall; this is consistent with claimant's testimony that she fell on ice in early 2010 [sic] and saw a chiropractor.
Therefore, while Dr. Dudick apportioned claimant's disability equally between her pre-existing back injury and her work-related accident, the doctor does not appear to have been aware of claimant's prior work-related injury and did not offer an opinion apportioning claimant's current disability to that injury. Nor is there any evidence in the record indicating that claimant's prior work-related injury was permanent in nature and caused any residual impairment, such that the injury could be considered to have resulted in disability in a compensation sense. Likewise, there is insufficient evidence that claimant's pre-existing back injury, whether caused by her prior work-related accident or other causes, prevented her from effectively performing her job as a group home manager prior to the development of her compensable back injury.
The Full Board finds, based upon a preponderance of the evidence, that apportionment is inapplicable in this case.
ACCORDINGLY, the WCLJ decision filed on March 1, 2012, is AFFIRMED. No further action is planned by the Board at this time.