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Case # G0341725
Date of Accident:
District Office: NYC
Employer: Bishop Mugavero Center
Carrier: New Hampshire Insurance Co
Carrier ID No.: W154009
Carrier Case No.: 709-895842
Date of Filing of Decision: 07/26/2013
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 June 18, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on September 12, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is the proper date of disablement.

The Workers' Compensation Law Judge (WCLJ) found that the appropriate date of disablement would have been no later than May 4, 2004, and that the claim was barred pursuant to Workers' Compensation Law (WCL) § 28.

The Board Panel majority affirmed the WCLJ's decision.

The dissenting Board Panel member would set the date of disablement as September 5, 2010, when the claimant ceased working, or in late September 2010, when the claimant received the first definitive diagnosis that his injury was caused by his work activity, and that the claim was timely filed. In the alternative, the dissenting Board Panel member would find that the injury be deemed an accident occurring on September 5, 2010.

On October 8, 2012, the claimant filed an application for Mandatory Full Board Review, arguing the proper date of disablement is September 5, 2010, as it is the date he began losing full wages at the employment at which he was previously employed.

On October 25, 2012, the carrier filed a rebuttal asserting that the claim was not timely filed pursuant to WCL § 28.

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

FACTS

On November 5, 2010, the claimant, then a 57 year old housekeeper at a nursing facility, filed a form C-3 (Employee Claim) asserting a back injury resulting from 16 years of repetitive work, such as mopping, cleaning and throwing out garbage. The carrier controverted the claim raising, among other defenses, that the claim was not timely filed pursuant to WCL § 28.

By a notice of decision filed April 4, 2011, the WCLJ found prima facie medical evidence for repetitive stress to the back.

On April 27, 2011, the claimant testified, via an interpreter, that he last worked on September 5, 2010, and that he had stopped working due to pain in his back. He had worked for 16 years for the employer and had been doing the same type of work for 20 years. His duties included mopping, collecting garbage, vacuuming, using a scrub machine, polishing the floors, and different types of projects such as cleaning the walls, clearing snow, and cleaning carpets. He worked 35 hours per week. He first began to experience back pain in 2004 and he went to see Dr. Caro. He continued to see Dr. Caro frequently for his back and other medical problems. He felt pain in the mid-part of his back but on September 5, 2010, it travelled to his leg and he also felt pain in his left leg. He was performing his routine work that day. He applied for Social Security Disability Benefits due to his back and another condition on February 17, 2011. His application was still pending. He only saw Dr. Caro for his back before he stopped working in 2010. Dr. Caro filled out a short term disability application for union benefits for the claimant wherein Dr. Caro indicated that the disability was not a result of injury arising out of and in the course of employment or occupational disease. The claimant has treated with Dr. Caro for 24 to 25 years. In 2004, the claimant had a discussion with Dr. Caro about how his work was affecting his back. Dr. Caro told him to do things that would not affect his back but did not tell him what was causing his back problem. (Hearing Minutes, 4/27/11, p. 17). The claimant lost a "couple" of days between 2004 and 2010 because of his back condition. (Hearing Minutes, 4/27/11, p. 17). The first time he had to stay home from work because of his back was in 2004 when he lost approximately two or three days. He was out of work approximately 20 or 25 days between 2004 and 2010. On September 5, 2010, the claimant experienced back pain when he was collecting garbage and tried to put a garbage bag weighing 45 or 50 pounds in the compactor. He experienced sharp pain shooting from his mid-back down his left leg. He had previously experienced mid-back pain but not pain down the left leg. He did not tell a supervisor that he had suffered a back injury. He was first told that his back problem was due to work activities in October 2010 by Dr. Piligian.

The employer's General Manager, who supervised the claimant, testified that the claimant never stated that he had a back condition as a result of work, but in 2009, the claimant said he had a back problem. The witness did not ask the claimant what caused his back problem. He last saw the claimant when the claimant filed for short term disability benefits and the claimant informed him that his doctor told him that he was not going to be able to work for six months because of his back. The witness confirmed the claimant's work hours and duties as testified to by the claimant.

At the April 27, 2011, hearing, the WCLJ directed the deposition of Dr. Caro, noting that the carrier's IME did not dispute causal relationship and was, in fact, silent on the issue. The record does not reflect that the carrier requested cross-examination of other doctors.

Dr. Caro testified by deposition on July 29, 2011, that the first entry on his electronic medical records indicating that the claimant presented with low back pain is dated May 22, 2008, and at that time he did not make any notation as to the reason the claimant gave for the low back pain. However, he knew at the time that the claimant had been working for the last several years in a nursing home/hospital type of setting. The doctor then found in his notes evidence of a May 4, 2004, MRI of the claimant's back which indicated central disc herniation at the L5/S1. He did not indicate in his note from 2004 whether or not the herniation was due to the claimant's work activity. Another MRI of the claimant's back was performed in April 21, 2011, but he did not have the full results in his file. He saw the claimant on March 1, 2011, for his low back pain. The claimant was disabled due to his back condition at that time. The claimant's treatment included an oral non-steroidal anti-inflammatory medication. The claimant was also advised to get physical therapy. He continues to see the claimant for multiple health issues but on each visit asks him about the back pain.

On cross-examination, the doctor was asked about a medical note in his file from July 13, 2005, wherein he diagnosed the claimant with low back pain. The doctor could not locate such a note in his file but found one from July 7, 2005, where low back pain and dizziness is indicated. There is a note in the doctor's file which indicates that the claimant was under his care and would not be able to attend work as of July 13, 2005. The diagnosis was back pain. (Deposition Transcript, 7/29/11, p. 22). Upon reviewing the July 7, 2005, note, he amended his testimony on direct examination to indicate that the first time he treated the claimant's back was July 7, 2005, not May 27, 2008 [sic-May 22, 2008] (Deposition Transcript, 7/29/11, pp. 23-24). It is possible that he told the claimant on July 7, 2005, that his work activity might be contributing to his back pain. (Deposition Transcript, 7/29/11, p. 24). He then indicated that he ordered the May 4, 2004, MRI of the claimant's back and that thus, the first evidence of the claimant's back pain would be in 2004, not 2005. On May 4, 2004, he diagnosed the claimant with lower back pain and left lower extremity sciatica. His notes from that date also indicate that the claimant had lumbosacral spine muscle spasm present and increasing low back pain since March 2004. Although his notes from 2004 do not indicate a cause, he testified that the conditions must have been triggered by the claimant's activity at work because he otherwise would have indicated in his notes that an accident had occurred. (Deposition transcript, 7/29/11, page 29). Degenerative disc disease was shown on the 2004 MRI. This could be contributing to the claimant's low back pain. Degenerative disc disease should occur in a patient older than the claimant, but repetitive trauma at work can accelerate the process. The claimant returned to work after treating with Dr. Caro in 2004 and 2005. A June 18, 2009, MRI was similar to the claimant's May 11, 2004, one. (Deposition Transcript, 7/29/11, p. 25). The claimant was unable to work due to his condition as of September 5, 2010.

On re-direct, when asked whether he had testified on cross-examination that in 2004, he told the claimant his back problems were work-related, Dr. Caro indicated "yes." (Deposition Transcript, 7/29/11, p. 36). When asked whether there was any notation of that in his records, the doctor recited the note contained in his medical record from May 4, 2004, namely, that "since March 2, 2004, increased low back pain with difficulty standing from chair for two weeks." In trying to clarify the question, the claimant's attorney asked him, "Did you tell him that his back pain was caused by his work?" to which Dr. Caro replied, "That it could be caused by work? Yes." (Deposition Transcript, 7/29/11, p. 37). Dr. Caro further indicated that the repetitive lifting and carrying could have aggravated a preexisting back condition to the point where the claimant was unable to work in 2010.

On re-cross, the doctor explained that he has had a long term patient-doctor relationship with the claimant, and based on his memory of what the claimant told him in 2004, he knows that the claimant was not doing any strenuous activity outside of work in 2004.

At the August 31, 2011, hearing, the WCLJ found that, based on Dr. Caro's testimony, the claimant knew in 2004 that he had a back injury causally related to his employment. She found that the appropriate date of disablement would have been no later than May 4, 2004. The WCLJ, therefore, found that the claim is barred by WCL § 28. These findings were reflected in a decision filed September 6, 2011.

LEGAL ANALYSIS

Pursuant to WCL § 28, the right to claim compensation for an occupational disease is not time barred if the claim is filed no more than two years after the date of disablement and after the claimant knew or should have known that the disease is or was caused by the employment (Matter of Patterson v Long Is. Jewish Med. Ctr., 296 AD2d 774 [2002]).

"It is well settled that the fixing of the date of disablement is a factual question for the Board and the Board has 'some latitude in the choice of dates as long as its determination is founded on substantial evidence' (Matter of Scimeni v Welbilt Stove Co., 32 AD2d 364, 366; see Matter of Gude v Elm Coated Fabrics Div., 79 AD2d 786; Matter of Falcone v Western Elec. Co., 72 AD2d 644, lv denied 48 NY2d 612). In making this determination, the Board is not bound to select the earliest possible date of disablement nor is it required to give preference to certain events over others." Matter of Bishop v. St. Joe Minerals, 151 A.D.2d 917.[1989].

The Board has been affirmed when it has selected as the date of disablement the date of first medical treatment (see Winn v Hudson Valley Equine Center, 215 AD2d 920 [1995]), the date that a work-related condition was first diagnosed (see Hastings v Fairport Cent. Sch. Dist., 274 AD2d 660, 710 [2000]), the date of claimant's first causally related lost time (see Glasheen v New York State Dep't of State, 239 AD2d 792 [1997]), and the date claimant permanently ceased working for the employer, even though he had previously had causally related lost time (see Cummings v Tenneco Chemicals Div., American Plastics, 53 AD2d 944 [1976]).

Here, the Board Panel majority has found that the evidence supports the WCLJ's decision setting the date of disablement as May 4, 2004, the date that Dr. Caro diagnosed low back pain and left lower extremity sciatica and told the claimant that his condition could be caused by work. However, upon closer scrutiny of Dr. Caro's testimony, the overall impression is that he seemed confused and unsure of the sequence of events relating to his treatment of the claimant's back condition. He was reliant upon his medical file to answer questions. When questioned regarding his communication of causal relationship to the claimant, the doctor's answers were conflicting and equivocal. For example, when asked if he told the claimant in 2005 that his back condition was being caused by his work activities, he answered, that it was "possible" he told the claimant his work activity "might be contributing to his back pain." He further testified that although his notes from 2004 do not indicate a cause, the conditions must have been triggered by the claimant's activity at work because he otherwise would have indicated in his notes that an accident had occurred. When under direct examination and cross-examination, he did not testify that he definitively told the claimant in 2004 or 2005 that his back condition was caused by his work. Yet, on re-direct examination, he stated that "yes" he testified to telling the claimant in 2004 that his back condition was work-related. Yet, when asked the question of whether he told the claimant that work was causing his back condition, he stated that he told him that "it 'could be' caused by work." While Dr. Caro's equivocal testimony, which was based on his memory from events or conversations that occurred seven years prior, suggests that the doctor may have advised claimant that his back condition was work-related as early as 2004, the record does not contain any written records from that period which indicated that Dr. Caro found a causal link between the claimant's condition and his work activity.

Therefore, the preponderance of the credible evidence in the record supports a finding that claimant was not made aware that his condition was causally related to his employment until 2010.

Furthermore, even if the record supported a finding that claimant knew or should have known that his condition was work-related in 2004, the record nonetheless supports setting the date of disablement at on September 5, 2010, when claimant permanently ceased working the employment which caused his condition. In Cummings (53 AD2d 944 [1976]), the date of disablement was set at the date claimant permanently ceased working for the employer, even though claimant had previously had periods of intermittent lost time due his work-related condition. In Cummings, the Third Department, affirming the Board, wrote:

Section 42 of the Workmen's Compensation Law gives the board the power to fix the date of disablement, and such a finding is factual in nature; the Ryciak decision in upholding a determination of the board which made the compensation carrier liable for medical payments incurred before the claimant had ceased work, broadened rather than restricted the power of the board to fix any date of disablement supported by the evidence where the spirit and purpose of the occupational disease provisions of the Workmen's Compensation Law would thereby be furthered. (Id.)

In Cummings, the Third Department, in addressing the carrier's argument that the date of disablement should be set at a date which would result in the claim being barred pursuant to WCL § 28, wrote:

It is pertinent to note that the Legislature has provided for measuring the timeliness of claims against the date of disablement rather than the date upon which an occupational disease is first contracted. A distinction is thus recognized between the initial contraction of a disease and the time when a claimant is first disabled from employment thereby. To hold that the present claimant is barred by limitations of time from filing a claim because she successfully attempted to continue to work as long as she possibly could would be clearly contrary to the spirit and intent of this benevolent legislation. (Id.)

In the present matter, even if the record supported a finding that claimant knew his condition was work-related in 2004, setting the date of disablement prior to 2010, when claimant finally ceased working and made a claim for compensation, would "be clearly contrary to the spirit and intent of this benevolent legislation."

Therefore, the Full Board finds that the preponderance of the evidence in the record supports setting the date of disablement at September 5, 2010, and finding that this claim was timely filed.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on May 2, 2011, is AFFIRMED. The WCLJ decision filed on September 6, 2011, is REVERSED, except for the finding of payment of $400.00 to Dr. Caro for his deposition. A finding is made that the date of disablement is September 5, 2010, and the claim was timely filed. The case is restored to the trial calendar to address all outstanding issues.