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Case # G0220168
Date of Accident: 12/15/2009
District Office: NYC
Employer: N.C.A. and Associates, Inc.
Carrier: Charter Oak Fire Ins. Co.
Carrier ID No.: W054001
Carrier Case No.: FZL2864
Date of Filing of Decision: 04/05/2013
Claimant's Attorney:
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 4, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claim was properly established for reactive airway disease with a December 15, 2009, date of accident.

The Workers' Compensation Law Judge (WCLJ) established the case for reactive airway disease with a December 15, 2009, date of accident.

The Board Panel majority affirmed the WCLJ's decision, concluding that the WCLJ's opinion and findings of fact are supported by a preponderance of the evidence available for review, and that the claimant's testimony was more credible than that of the employer's witnesses.

The dissenting Board Panel member would have reversed the WCLJ, disallowed the claim for reactive airway disease, and closed the case, finding that the record does not contain sufficient credible evidence supporting the claimant's contention that she was exposed to high levels of dust in her office environment.

In its application for Mandatory Full Board Review filed on June 28, 2012, the State Insurance Fund (SIF) argues that the claim for reactive airway disease should be disallowed because the credible evidence in the record does not support a finding that the claimant was exposed to high dust levels in the workplace.

In their application for Mandatory Full Board Review filed on July 3, 2012, the attorneys for the Charter Oak Fire Insurance Company c/o Travelers Ins. Co. (Travelers) request that the claim be disallowed because the credible evidence in the record does not support establishment of the claim.

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

FACTS

On December 26, 2009, the claimant filed a C-3 (Employee Claim) reporting that she was injured on December 9, 2009, while working as a medical assistant. The claimant alleged that she has injuries to her skin, lungs and tongue that resulted from breathing in dust while she was cleaning up dust from her desk to do her work. The claimant alleged that she has shortness of breath, rash, swollen tongue, asthma, cough, and chest pain.

On January 13, 2010, the employer filed a C-2 (Employer's Report of Work-Related Injury/ Illness) which noted that the claimant had reported that there was dust in the air that caused an allergic reaction. The employer acknowledged that "[t]he week prior to the employee's injury there was a water boiler change in the building which required plumbers to work in our location." The employer further acknowledged that there was some mild dust created from the plumber's work, but stated that the dust was cleaned daily.

Attached to the C-2 is a letter signed by Physician 1, one of the physicians for whom the claimant worked, who stated that the claimant had never complained of any dust or other issues with the environment in the office. The letter states that the claimant works with a pulmonologist in the office, and if there was any danger to his patients or employees, he would have closed the office. Physician 1 also refers to several emails from the claimant which indicate that she was sick but failed to state that her illness resulted from work. In the attached emails dated December 16, 2009, and December 29, 2009, the claimant explained to Physician 1 that she was not feeling well and that she was seeking treatment. However, the claimant does not suggest that her illness is related to work until an email dated December 30, 2009. In a letter dated January 5, 2010, the claimant formally informed her employer that she was claiming a work-related injury. She explained that during the week prior to December 9, 2009, she was cleaning black dust from the work areas. On December 9, 2009, she developed a rash and was unable to catch her breath. On December 10, she had the same problem and took Benadryl. On December 11, she went to the doctor. On December 14, she spoke to the employer and asked to leave early due to poor air quality. In the next two weeks her rash worsened, her tongue became swollen and she continued to have trouble breathing. She has been treated with allergy medications, and she has been told that her condition is due to her working environment.

In a decision filed on November 16, 2010, the WCLJ noted that SIF had conceded coverage and found dual coverage with both Travelers and SIF on December 9, 2009.

The record contains a report from Dr. Poole, the claimant's treating physician, of an examination on December 11, 2009. Dr. Poole noted that the claimant reported a history of "[r]ecent boiler work at her job, and the place is very dusty" (ECF Doc ID #164503734, p. 1). The claimant presented with a rash and complained of intense itchiness all over her head and body. Dr. Poole diagnosed dermatographic urticaria.

In a report of an examination on December 15, 2009, Dr. Poole noted the claimant's continued complaints of itchiness, along with "heaviness in the chest for weeks (since starting her job)," swelling of the tongue, and shortness of breath (ECF Doc ID #164503734, pp. 5-6). Dr. Poole diagnosed shortness of breath and abdominal pain.

The record contains a report from Dr. Chau, the claimant's treating physician, of a consultation on December 30, 2009. Dr. Chau diagnosed the claimant with pruritus, angioneurotic edema and reactive airway disease (ECF Doc ID #164503734, p. 9).

Dr. Aminov, the claimant's treating physician, submitted a report of initial treatment on July 14, 2010, which diagnosed bronchial asthma and atopic dermatitis, causally related to the environment in her office that resulted from flooding that occurred prior to December 9, 2009. The claimant had reported that while at work on December 9, 2009, she started itching all over her body, she developed rashes around her neck, and she developed shortness of breath.

Dr. Friedman, the consulting physician for Travelers, submitted an IME-4 report of an examination on July 29, 2010, and noted his review of records which referenced the claimant not having had an asthma attack in years. The claimant described no history of asthma or allergy. Dr. Friedman found evidence of reactive airway disease dysfunction syndrome associated with high dust exposure in the claimant's work environment resulting in some mild airway reversibility confirmed by pulmonary function testing. He also found that the claimant developed angioneurotic edema with swelling of her tongue related to allergy. He opined that exposure in an indoor environment that was allegedly contaminated with both mold and dust exacerbated her allergic condition as well as created an irritant exposure resulting in progressive increase in airway irritation culminating in an acute asthma attack. Dr. Friedman found the claimant to have a mild partial disability on the basis of asthma which he found causally related to her exposure. He stated that she requires a cleaner environment and should continue antihistamine therapy for multiple allergies. His report indicates his awareness of pre-existing conditions of allergies.

At the hearing held on January 5, 2011, the claimant testified that she worked as a medical assistant at two offices for the employer. At one office there was black dust on every surface and she mentioned this to the office manager who was her supervisor. The claimant explained that the black dust developed over time, and that she started to have reactions to it because she was cleaning it up on a regular basis. There was also a rancid odor in the office. She performed a lot of work in a lab where someone had closed a vent off with plastic bags. She informed her supervisor that there was a problem with dust being everywhere, but it was never addressed. On December 9, 2009, she developed a rash, her tongue started to swell, and she experienced shortness of breath. She did not realize it was associated with work and returned to work the following day, when her symptoms worsened. She visited Dr. Poole on December 11, 2009. On December 14, 2009, she had to leave work again since she felt like she was having an asthma attack and was experiencing severe breathing problems. She spoke to Physician 2 for whom she worked. She also spoke to everyone in the office and she emailed Physician 1. The claimant explained that she never told Dr. Poole that she had asthma. Instead she explained that Dr. Poole asked her if she ever used inhalers and the claimant responded that she used them when she previously had bronchitis, but she was never diagnosed with asthma, although she was told that she had a form of asthma. She previously had an allergic reaction when she was 13 years old.

At the hearing held on February 9, 2011, the employer's office manager testified that she had been the claimant's supervisor. The office manager denied that the claimant reported any conditions such as dust or mold or that she was having a breathing reaction. Physician 2 was a pulmonologist. The office manager never noticed dust or a dusty environment. She was notified in December 2009 that the claimant was alleging a condition because of her work. She was told that boiler work was done. Another employee stopped working approximately the same time because of illness, but the witness did not know why she was ill. She could not remember if employees were permitted to leave early one day due to poor air quality in the office.

At the hearing held on February 9, 2011, the front desk worker at the employer testified that the claimant told her that she had an allergic reaction to brownies in the past. The front desk worker noticed no black dust or mold over any surfaces in the offices.

At the hearing held on February 9, 2011, Physician 1 testified that he was not aware of any hazardous conditions such as dust or mold in the office. No construction was done from January 2009 to December 2009. One of his offices has an issue in the boiler room and water went into one of his offices and the boiler or the hot water heater had to be replaced. He did not believe that he was notified in December 2009 that the claimant was alleging a work-related condition. He learned in January 2010 that the claimant was alleging a work-related condition. He did have difficulty with the claimant's actions prior to December 2009, when she did not provide a signature indicating that she had received a new employee handbook. However, she was not in jeopardy of losing her job. He never noticed dust or mold over surfaces. Physician 1 stated that since Physician 2 was a pulmonologist and worked in the office, he would not work in an environment that would jeopardize his patients.

At the conclusion of the hearing on February 9, 2011, the WCLJ provided an opportunity for the parties to provide oral summations on the record. The WCLJ denied Travelers on the ground that the request was untimely.

In a reserved decision filed February 25, 2011, the WCLJ established the case for reactive airway disease with a December 15, 2009, date of accident. The WCLJ found the claim of an environmental irritant in the claimant's office to be persuasive based on the claimant's report of the dust when she initially treated with Dr. Poole on December 11, 2009. In addition, the WCLJ did not find the office manager to be credible when she testified that she could not remember whether the claimant had complained to her about dust in the office.

LEGAL ANALYSIS

"[A] claimant [has] the burden of showing that accidental injuries suffered by him [or her] actually were sustained in the course of … employment and arose out of the employment" (Matter of Hansen v Syracuse Home Assn., 55 AD3d 1167 [2008] [internal citations and quotation marks omitted]).

Here, the claimant testified that she began to have symptoms including shortness of breath, rash, swollen tongue, asthma, cough, and chest pain, after being exposed to black dust in her workplace at the beginning of December 2009. Three employer witnesses testified that there was no issue of dust in the workplace.

"The Board 'is the sole arbiter of witness credibility' (Matter of Hammes v Sunrise Psychiatric Clinic, Inc., 66 AD3d 1252 [2009]; accord Matter of Richman v NYS Unified Ct. Sys., 91 AD3d 1014 [2012])" (Matter of Wiess v Mittal, 96 AD3d 1175 [2012]). Although the Board is entitled to make its own factual findings and is not bound by the credibility determinations of a WCLJ (see Matter of Ortiz v Five Points Correctional Facility, 307 AD2d 634 [2003]), the credibility determinations of the WCLJ who heard the testimony are entitled to considerable weight (Di Donato v Hartnett, 176 AD2d 1102 [1991]).

Here, the WCLJ who was present when claimant and the employer's lay witnesses testified, and was able to observe their demeanor, found the testimony of the claimant regarding dust in the workplace to be more credible than that of the employer witnesses. The Full Board agrees with the WCLJ's credibility determination and finds that the employer witnesses are less credible because the office manager and Physician 1 provided inconsistent testimony regarding when the claimant provided notice of her injury to the employer. The Full Board further finds that it was not credible that the office manager would be unable to remember whether the employees were permitted to leave early one day due to poor air quality in the office. Although each of the employer witnesses denied any dust or mold in the office, in the employer's C-2 form dated January 12, 2010, and signed by Physician 1, the employer acknowledged that in the week prior to the employee's injury, there was a water boiler change that created some mild dust. Finally, the medical evidence in the record supports a finding of causal relationship between claimant's condition and exposure to dust in her work environment.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports the establishment of this claim for a reactive airway disease with a December 15, 2009, date of accident.

CONCLUSION

Accordingly, the WCLJ reserved decision filed February 25, 2011, is AFFIRMED. No further action is planned by the Board at this time.