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Case # G0194335
Date of Accident: 02/09/2010
District Office: Hauppauge
Employer: Bugler Sales Corp
Carrier: Graphic Arts Mutual Ins Co
Carrier ID No.: W099006
Carrier Case No.: 1033630
Date of Filing of Decision: 04/05/2013
Claimant's Attorney: Klee & Woolf LLP
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on March 19, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on June 14, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the carrier should be liable to pay for the claimant's right shoulder surgery.

The Workers' Compensation Law Judge (WCLJ) found that the claimant's surgery was causally related to her February 9, 2010, work accident, and resolved the carrier's Form C-8.1Bs related to the claimant's surgery in favor of the health care providers.

The Board Panel majority found that the claimant's right shoulder surgery was related to her preexisting condition and not her February 9, 2010, work accident and resolved the C-8.1 disputed medical bills related to the claimant's right should surgery in favor of the carrier. The majority declined to review the issue of the claimant's degree of disability, as the issue was not addressed within the WCLJ's decision and the WCLJ continued the case to address the issue.

The dissenting Board Panel member would affirm the WCLJ's decision. The dissent found that the carrier failed to properly deny the claimant's request for surgery to the right shoulder, as the carrier did not timely file contrary medical.

In her application for Mandatory Full Board Review, filed with the Board on July 13, 2012, the claimant contends that the carrier's denial of the claimant's surgery was legally defective and the surgery must be authorized.

In its rebuttal, filed with the Board on August 13, 2012, the carrier contends that the Board Panel decision finding that the claimant's right shoulder surgery was not causally related must be upheld in its entirety. The carrier contends that based upon the credible medical record, the claimant did not require right shoulder surgery on a causally related basis.

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

FACTS

On February 9, 2010, the claimant, an office manager, was injured when she fell backwards down a flight of stairs. The claim is established for work-related injuries to the claimant's neck, back, right hand, right shoulder, and right elbow. The claimant's average weekly wage was set as $857.22.

The claimant was involved in a prior motor-vehicle accident on May 4, 2004, wherein she sustained multiple injuries including to her right shoulder.

The claimant was examined by her attending orthopedic surgeon, Dr. Goldman, on July 15, 2010. Dr. Goldman, in a narrative report attached to the Form C-4.2, diagnosed the claimant as having DJD/pain lower back, impingement of the right shoulder, carpal tunnel syndrome both wrists, right greater than left, and ulnar nerve entrapment of the right elbow. Dr. Goldman requested authorization for arthroscopic surgery to the right shoulder and ulnar nerve transposition/release of the right elbow. Dr. Goldman repeated his request for authorization to perform surgery to the claimant's right shoulder and left elbow in a medical narrative dated August 14, 2010. Dr. Goldman once again requested surgery to the claimant's right shoulder and left elbow in a Form C-4AUTH filed with the Board on September 3, 2010.

In response to the Form C-4AUTH, the carrier filed a Form C-4AUTHD indicating that the request for surgery was denied pending the outcome of its consultant's exam scheduled for September 22, 2010. The Form C-4AUTHD denial was filed with the Board by the carrier on September 17, 2010. The form expressly indicates that if the claimant is not hospitalized, the carrier must grant or deny the request for authorization within thirty days, and that the denial of the request must be based upon and accompanied by a conflicting second medical opinion, and that the carrier must also file with the Board within 5 days of such denial Board Form C8.1 Part A. The Form expressly indicates that failure to file timely the conflicting second opinion and Board Form C-8.1 Part A will render the denial defective.

The claimant was examined by the carrier's orthopedic consultant, Dr. Freeman, on September 22, 2010, and a corresponding report was issued. Dr. Freeman diagnosed the claimant with preexisting degenerative joint disease of the right shoulder, internal derangement of the right shoulder, right ulnar neuropathy at the elbow, cervical radiculopathy, and lumbar radiculopathy. Dr. Freeman opined that the claimant had a marked partial disability at the time of the examination, and that her injuries are causally related to her work-related accident. Last, Dr. Freeman opined that surgery to the claimant's right shoulder and elbow is indicated in the claimant.

On October 27, 2010, Dr. Freeman filed an addendum to her September 22, 2010, report, indicating that she had reviewed the claimant's records from 2004. Dr. Freeman stated that "The major cause of the claimant's disability is her right upper extremity, which is not a reported area of injury due to the prior motor vehicle accident."

Thereafter, the carrier resubmitted some of the claimant's medical records to Dr. Freeman, and asked Dr. Freeman to "Please review additional medical and issue an addendum if it changes your opinion regarding the right shoulder and prior motor vehicle accident."

In response, on November 24, 2010, Dr. Freeman filed an addendum to her September 22, 2010, consultant report and indicated that the claimant had significant symptoms to the right shoulder prior to the February 9, 2010, work accident, and opined that the proposed surgery to the right shoulder would be to address the claimant's preexisting symptoms to the right shoulder.

The claimant had surgery to the right shoulder on November 26, 2010.

The claimant's attorney filed a Form ERFA-1 on December 16, 2010, indicating that the claimant had surgery on November 26, 2010, and requesting a hearing to address proper rates of compensation. In response, the case was reopened.

On December 17, 2010, the carrier submitted a Form C-8.1.B objecting to paying for the claimant's November 26, 2010, surgery based on Dr. Freeman's addendum which opined that the surgery was related to a prior motor vehicle accident.

By Notice of Decision filed on January 25, 2011, surgery and post operational physical therapy was authorized for the claimant's right elbow.

Dr. Goldman was deposed on March 7, 2011, and testified that he first treated the claimant on July 6, 2010, and the claimant reported having pain in her back and right shoulder upon falling down stairs at work on February 9, 2010. He found that the claimant had arthritis and pain to the low back and impingement of the right shoulder related to the work accident. He indicated that on November 26, 2010, he performed a synovectomy to clean out the right shoulder joint and decompression to give more space for the muscles and right rotator cuff. He opined that the claimant's need for surgery to the right shoulder was causally related to the February 9, 2010, work accident. He conceded that he was not aware of previous injuries to the claimant's right shoulder prior to performing surgery. He testified that if the claimant had a preexisting condition to the right shoulder, it "definitely" would have been exacerbated by the claimant's work accidents. The doctor noted that the claimant was working from the time of her May 2004 motor-vehicle accident until her February 2010 work accident.

Dr. Freeman was deposed on May 10, 2011, and testified that she examined the claimant on September 22, 2010. The claimant reported falling down stairs at work on February 9, 2010. She diagnosed the claimant with preexisting degenerative joint disease of the right shoulder, internal derangement of the right shoulder, ulnar derangement at the elbow, and cervical and lumbar radiculopathy. She felt that the claimant was markedly disabled and capable of doing a sedentary job only. The claimant had significant symptoms prior to the February 2010 accident, and that surgery would be to address the preexisting problems. She conceded that the claimant's work accident could have exacerbated the condition of the claimant's right shoulder and that she did not examine the claimant after September 22, 2010.

In a reserved decision filed on July 13, 2011, the WCLJ found that the testimony of Dr. Goldman was more credible than the testimony of Dr. Freeman and noted that both medical experts agreed that the claimant's work accident could have exacerbated the condition of the claimant's right shoulder. The WCLJ resolved the Form C-8.1 disputed medical bills concerning the claimant's surgery to the right shoulder in favor of the health care providers and continued the case for awards.

By decision filed on November 3, 2011, the WCLJ made awards, directed the carrier to continue payments, directed the carrier to reimburse the claimant for medical and travel expenses, and noted that no further action was planned by the Board at that time.

LEGAL ANALYSIS

When the claimant is not hospitalized and the employer or its carrier is asked to authorize nonemergency "specialist consultations, surgical operations,…x-ray examinations or special diagnostic laboratory tests" costing more than $1,000.00, the employer or carrier has 30 calendar days from the day it receives the request to deny it (WCL § 13-a[5]; 12 NYCRR 325-1.4[a][6]). That denial must be supported by conflicting opinion rendered by a Board-authorized physician (id.). If the employer or carrier denies the request but no such medical opinion appears in the record, the Board may conclude that the authorization was "unjustifiably withheld" (Matter of Stilwell v Sodexho Marriott, 45 AD3d 1033 [2007]; see also 12 NYCRR 325-1.4[a][7]).

12 NYCRR 300.23(d) requires a carrier that is denying authorization for special medical services (i.e. surgery) to file a Form C-8.1A within 5 days from the date of the denial.

In the instant case, Dr. Goldman submitted a Form C-4AUTH requesting authorization to perform surgery to the claimant's right shoulder on September 3, 2010. The carrier issued a denial of the request for authorization for surgery on September 17, 2010, indicating that authorization for the surgery was being denied pending the outcome of the claimant being examined by its consultant. The claimant was examined by the carrier's consultant on September 22, 2010, and a corresponding report was filed by the consultant on September 29, 2010, opining that the claimant's shoulder injury was causally related and that surgery was indicated. Upon the carrier's request, the consultant submitted an addendum report on October 27, 2010, indicating "The major cause of the claimant's disability is her right upper extremity, which is not a reported area of injury due to the prior motor vehicle accident." Upon another request by the carrier, the consultant submitted a second addendum on November 24, 2010, opining that the claimant had significant symptoms prior to the February 9, 2010, work accident and the proposed surgery would be to address the pre-existing symptoms. The carrier never submitted a Form C-8.1A; the claimant had surgery to her right shoulder on November 26, 2010, and the carrier submitted a Form C-8.1B on December 17, 2010, disputing the bill for surgery.

Given that the carrier did not submit contrary medical within 30 days from Dr. Goldman's request for authorization, nor submit a Form C-8.1A within 5 days of its denial, the denial of the surgery was ineffective pursuant to the statute, the accompanying regulations, and the Form C-4AUTH.

Therefore, the Full Board finds, upon review of the record and based upon a preponderance of the evidence, that due to the carrier's failure to effectively deny authorization for the claimant's surgery, the surgery was deemed authorized.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on July 13, 2011, is MODIFIED to find that based on the carrier's failure to effectively deny authorization for the claimant's surgery, the surgery was deemed authorized, and Form C-8.1B objections related to the claimant's November 26, 2010, surgery to the right shoulder are ruled in favor of the health providers. No further action is planned by the Board at this time.