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Case # G0304574
Date of Accident: 11/06/2008
District Office: NYC
Employer: School Food & Nutrition Svs
Carrier: Board of Education
Carrier ID No.: W842009
Carrier Case No.: 0741-10-75501
Date of Filing of Decision: 07/12/2013
Claimant's Attorney: Severance, Burko, Spalter & Masone, PC
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.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether the claimant's failure to provide timely written notice under Workers' Compensation Law (WCL) § 18 was properly excused; and
  2. whether claimant sustained an accidental injury.

The Workers' Compensation Law Judge (WCLJ) found accident and notice for a neck injury, and continued the case for further development of the record on the issue of a causal relationship.

The Board Panel majority affirmed the WCLJ's decision, finding accident and notice for a neck injury with an accident date of November 6, 2008.

The dissenting Board Panel member would have disallowed the claim, finding that the claimant did not give notice of the injury to her employer within 30 days, as required by WCL § 18, that the lack of timely notice should not be excused, and that the claimant's testimony supports a finding that she had a sudden onset injury that was not gradual.

In its application for Mandatory Full Board Review filed on July 3, 2012, the self-insured employer (SIE) argues that the claim should be disallowed because the claimant sustained a discrete accident that is barred by WCL § 18. The SIE contends that the claimant gave late notice of the accident to her employer and she failed to rebut the presumption that the employer was prejudiced by the late notice. The SIE further argues that the evidence in the record supports a finding that the claimant immediately knew the nature and extent of her injury.

In a rebuttal filed with the Board on July 20, 2012, the attorney for the claimant argues that the Board Panel majority decision should be affirmed based on the credible testimony of the claimant. The claimant contends that the finding that she sustained an accident is proper because her injury resulted from repetitive trauma. The claimant further asserts that her late notice should be excused where, as here, the employer was not prejudiced by the delay. The claimant also argues that she notified the employer immediately after she learned the severity of her injuries, which is another exception to WCL § 18.

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

FACTS

On July 1, 2010, the SIE submitted a C-2 (Employer's Report of Work-Related Injury/Illness) and a C-7 (Notice that Right to Compensation is Controverted) to the Board. On its C-2 form, the employer noted that the claimant, a school lunch helper, had reported an accident at work on November 6, 2008, that resulted in stiffness in her neck with muscle spasm. The employer reported that the claimant had no treatment until March 17, 2009, that she continued to work for the employer until March 19, 2009, and that she did not provide notice to the employer until June 8, 2010. The employer reported that the claimant alleged that she was injured as the result of opening and closing the gate in the "a la carte" room.

On its C-7 form, the SIE controverted the claim solely on the ground that claimant failed to provide timely notice pursuant to WCL § 18.

On July 16, 2010, the claimant filed a C-3 (Employee Claim) reporting that she was injured on November 6, 2008, when she was lifting up the heavy rolling gate at the "a la carte" room. The claimant reported that she "had a lot of neck tension, trembling and palpatations." The claimant alleged that she gave notice of her injury to the employer but she did not provide a date of notice or indicate whether the notice was provided orally or in writing. She reported that she first received treatment for her injury on November 6, 2008, but that she did not stop working until January 10, 2010.

The Board file contains no reports of the claimant's treatment on either March 17, 2009 (the date reported on the C-2), or November 6, 2008 (the date reported on the C-3).

The first medical evidence received by the Board is a letter dated June 3, 2010, and signed by Dr. Hunt, the claimant's treating neurologist. In the letter, Dr. Hunt noted that the claimant was first examined on May 27, 2010, and has been diagnosed with severe cervical dystonia. The claimant reported a history of lifting and pulling down a roll-up door at work. She would have to lift up and pull down the door several times per day. "She would ask for help with the rolling door when she felt she was having trouble but only sometimes would have help." Dr. Hunt opined that it is more probable than not that the cervical dystonia was caused by repeated trauma to the neck and shoulder area by the rolling door. Dr. Hunt explained that the exact day of onset of dystonia is difficult to determine because it evolves over time. Also, "[m]any times with dystonia, patients are told they have psychological problems and not a neurological disease [which] causes a delay in treatment and much unnecessary suffering." Dr. Hunt opined that the dystonia started on November 6, 2008, the day she went to the hospital for treatment.

Subsequently, the Board received a copy of a cervical MRI that was performed on December 30, 2009 (ECF Doc ID #173265866), but the referring physician is not listed on the report.

Another cervical MRI was performed on April 1, 2010, and Dr. Polonsky's name (the claimant's treating psychiatrist) is noted on the report, as the attending physician.

The record also contains Dr. Hunt's narrative report of the initial examination on May 27, 2010. Dr. Hunt noted a history that the claimant first started having neck problems in September or October of 2008. She had on and off pain, and tightness. Now, she has abnormal neck movements and feels a pulling of the neck, which is quite violent and jerking. She worked until March 2009, when she took a leave of absence because she felt she could not do her job. At her job, she would have to lift a heavy roll up door three to five times per day. She went back to work in September 2009, but in November and December 2009, the neck movements got worse. Dr. Hunt noted that by January 2010, she was unable to continue working. She saw a neurologist and had an MRI in December 2009, which showed a normal cervical spine. Another cervical spine MRI done in April 2010 was also normal. Dr. Hunt found that the claimant's symptoms were consistent with cervical dystonia and explained that peripheral trauma, such as the repeated trauma that the claimant has had from lifting and pulling down the rolling doors at work, can cause cervical dystonia.

At the hearing held on September 20, 2010, the claimant testified that when she first sought treatment for her neck condition, the doctors told her it might be anxiety, and gave her muscle relaxers. The transcript indicates that the claimant submitted some record of her treatment at the emergency room on November 6, 2008. However, the record contains no documentation of treatment on November 6, 2008.

At the hearing held on October 27, 2010, the claimant testified that she was employed in the school cafeteria and her duties included preparing and serving lunches. She also worked in the a la carte room selling snacks and juice to the students. There was a gate to the room that she had to pull up to get to the register. She would often experience pressure, tension and trembling in her neck from lifting the gate at work. On November 6, 2008, she was lifting up the gate and felt a trembling in her neck, a lot of pulling, neck tension, and could not turn her neck to the right. She left work early and went to the emergency room. They told her it was probably anxiety, and to continue taking her medications. She told the manager or the bookkeeper in the office that day that she was not feeling well. The first time she treated for her neck was in December 2009. She saw a medical doctor who ordered an MRI for the neck. In May 2010, she saw Dr. Hunt who told her that her problem was cervical dystonia and that it is work related. She last worked in January 2010. She is unable to work because she cannot control the muscles and nerves in her neck. Prior to November 2008, she never had problems with her neck, but she did have anxiety on and off. She requested a leave of absence in March 2009 because she had anxiety. She did not tell her supervisor that her neck injury was work related at that time because she was not sure it was work related until May 2010, when she saw the specialist. The first time she told her employer that it was work related was on June 3, 2010.

At the hearing held on October 27, 2010, the supervisor for school food service testified that the claimant first requested medical leave in March 2009 because she had anxiety. She did not state that it was work related. She returned to work on September 16, 2009, but requested leave again in January 2010. She had a psychological doctor's note stating that she has problems. She did not state that it was work related. She has not returned to work. In June 2010, the claimant reported to the supervisor that she had problems lifting the gate at school and that she has a work-related injury. This was the first time she alleged a work-related injury.

In a reserved decision filed on May 3, 2011, the WCLJ found accident and notice for a neck injury. On the issue of accident, the WCLJ explained that the claimant was credible when she testified "she has a repetitive injury to her neck with symptoms that accrued gradually over a reasonably definite time period." On the issue of notice, the WCLJ explained that "[t]he [employer] witness confirmed that [the claimant] complained about her neck due to her job." Therefore, the WCLJ found that the claimant's failure to provide timely written notice of her injury to the employer, as required by WCL § 18, is excused. The WCLJ continued the case for further development of the record on the issue of a causal relationship.

LEGAL ANALYSIS

WCL § 18 Notice

"Workers' Compensation Law § 18 requires that a claimant give his or her employer notice of an injury for which compensation is sought within thirty days after the accident causing the injury. Failure to give the required notice may be excused by the Board based upon a finding that such notice could not, for some reason, be given, or that the employer or an agent thereof had actual knowledge of the accident or death or, finally, that the employer was not prejudiced by the delay. No prejudice will be found to exist where the employer had actual independent knowledge of the event or where the delay neither aggravated the injury nor prevented the employer from properly investigating the claim" (Matter of Miner v Cayuga Correctional Facility, 14 AD3d 784 [2005] [internal citations and quotation marks omitted]). It is the claimant's burden to show that the employer was not prejudiced by the late notice (id.).

Here, the claimant testified that she did not give notice to the employer of her injury until June 3, 2010. As such, the record contains insufficient evidence that the claimant provided timely notice of the accident to her employer. However, the claimant further testified that she did not tell her supervisor that her condition was work related before that because she was not sure it was work related until May 2010, when she saw a specialist. The medical evidence in the record supports the claimant's testimony in this regard. Although the claimant had cervical MRIs performed in December 2009, and in April 2010, prior to being examined by Dr. Hunt in May 2010, the findings related to the cervical spine on those MRIs were normal. Further, Dr. Hunt has provided a credible explanation in her report that "[m]any times with dystonia, patients are told they have psychological problems and not a neurological disease [which] causes a delay in treatment …" There is no contrary medical evidence in the record.

The Full Board finds that the claimant's delay in providing notice to her employer was due to the fact that she was misdiagnosed and did not realize the nature or extent of her neck injury and that because she had originally been told that the pain in her neck was due to anxiety. Late notice will be excused, regardless of possible prejudice, if the claimant was not aware of the seriousness or causal connection of an injury to employment (Matter of Peters v Putnam Hosp. Ctr., 146 AD2d 834 [1989]); Matter of McEnaney v Memorial Hosp., 80 AD2d 689 [1981], lv denied 53 NY2d 606 [1981]).

Therefore, the Full Board finds that, based on the relevant case law, the claimant's delay in providing notice should be excused and the claim is not barred by WCL § 18.

Accident

The SIE, in its C-7, controverted this claim solely on the ground that claimant did not provide timely notice, and did not argue that claimant did not sustain an accidental injury. Moreover, claimant has met her burden of showing that she sustained an accidental injury arising out of and in the course of her employment. The claimant testified that while working as a school lunch helper, she would often experience pressure, tension and trembling in her neck from lifting the gate at work. She had to lift the gate every day during work. She testified that on November 6, 2008, she was lifting up the gate and felt a trembling in her neck, a lot of pulling, neck tension, and could not turn her neck to the right. In the narrative report dated June 3, 2010, Dr. Hunt opined that the claimant's severe cervical dystonia is causally related to her lifting up and down of the rolling gate at work multiple times per day. There is no contrary medical evidence in the record.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant had an accidental injury, which happened gradually over a reasonably definite period of time, related to repetitive lifting of a gate at work.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed May 3, 2011, is AFFIRMED. The case is continued.