The Full Board at its meeting on May 21, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel memorandum of decision filed August 16, 2012.
The issue presented for Mandatory Full Board Review is whether the claimant developed causally related anal fistulae and perianal abscesses.
The Workers' Compensation Law Judge (WCLJ) disallowed the claims for anal fistulae and perianal abscesses.
The Board Panel majority reversed the WCLJ's decision, finding that there is sufficient credible evidence in the case record to support a causal relationship finding for the claimant's rectal/perianal abscesses and fistulae, and a consequential relationship for the claimant's ileostomy.
The dissenting Board Panel member determined that the claimant has not proffered sufficient credible medical evidence to support a finding that his development of anal fistulae and perianal abscesses, and his need for an ileostomy procedure, were either causally related or consequentially related to his occupational history of working for the self-insured employer (SIE) as a bus driver.
In its application for Mandatory Full Board Review, the SIE asserts that the Board Panel majority's decision is not supported by substantial evidence. The SIE argues that the WCLJ properly concluded that the claimant's medical condition is not causally related to his occupation as a bus driver.
In his rebuttal, the claimant requests that the opinion of the Board Panel majority be upheld in its entirety.
Upon review, the Full Board votes to adopt the following findings and conclusions.
In a C-3 (Employee Claim) filed with the Board on December 9, 2010, the claimant indicated that he developed anal fistulas, perianal abscesses, a back injury, a right leg injury, a psychiatric condition, post-traumatic stress, anxiety, depression and stress as a result of his employment with the SIE as a bus driver/utility worker. The claimant cited repetitive actions over a period of time, including driving the bus and sitting for hours while not being able to use the bathroom and being bounced around and jolted while driving.
The SIE controverted the claim by filing of a timely C-7.0 (Notice that Right to Compensation is Controverted) with the Board on January 3, 2011.
In a decision filed on February 3, 2011, the WCLJ, among other findings, directed further development of the record on the issues of causally related anal problems or aggravation of same and causally related ileostomy and consequential depression, with the deposition testimony of the claimant's treating physicians and directed the SIE to produce an independent medical examination (IME) report at or before the next hearing on these issues.
In a decision filed on March 24, 2011, the WCLJ precluded the SIE from producing an IME on the issue of whether claimant's physical and psychiatric conditions are causally related.
At a deposition held on April 5, 2011, Dr. Dyrszka, testified that he has treated the claimant since March 13, 2009, and that the claimant was referred to him following a period of treatment for acute gastroenterologic problems. Dr. Dyrszka initially diagnosed the claimant with pseudomembranous colitis, which has been "cured," and subsequently added a diagnosis of Crohn's disease. Dr. Dyrszka testified that the etiology of Crohn's disease is unknown and conceded that it did not develop as a result of the claimant's occupational activities.
At a deposition held on April 8, 2011, Dr. Henoch testified that he has treated the claimant since December 15, 2010. He obtained a history from the claimant that his employment as a bus driver involved prolonged periods of sitting, and an inability to take bathroom breaks when needed, which together resulted in the claimant having to hold his bowel movements during work shifts. The claimant's medical history indicates that in September of 2006, he developed perianal abscesses and was out of work for two months; he developed additional abscesses and anal fistulae in 2007; he underwent multiple fistulectomies; he was placed on an ileostomy bag in an effort to prevent further infections to the anal area and has become depressed as a result of his medical conditions. Dr. Henoch testified that the claimant's repetitive travel activity associated with his occupation as a bus driver is the competent and precipitating medical cause of his development of rectal abscesses and anal fistulae. Dr. Henoch added that the claimant presented with no history of prior rectal conditions. Upon cross-examination, Dr. Henoch indicated that the claimant was first diagnosed with Crohn's disease on January 26, 2011. Dr. Henoch noted that the claimant was asymptomatic for Crohn's disease at the time he first developed the rectal abscesses and anal fistulae, which he associated with the claimant's prolonged sitting activities at work. Dr. Henoch explained that the claimant's ileostomy was performed to direct stool away from the rectal area and promote healing.
Dr. Rai did not appear at scheduled depositions held on April 6, 2011, and May 24, 2011, and did not subsequently provide testimony.
At a hearing held on May 25, 2011, the claimant testified that he was employed as a bus driver and a utility worker for the SIE beginning in 2001. The claimant explained that while he was working as a bus operator his regular bus route assignment ran from a starting point in Yonkers to 26th Street in Manhattan. His bus route was an express route from the upper Bronx until he arrived at 26th Street in Manhattan. It would generally take 1 hour to 1 hour and 10 minutes to complete this route in one direction, and he would complete three round trips over this bus route on a daily basis. If he drove during rush hour, the route might take 1 hour and 30 minutes to complete, and impact his ability to take a break. The claimant indicated that he ran late on his runs 95% of the time. On average, he would have approximately 5 to 10 minutes of free time after completing his bus route in each direction, but that he was required to stay with the bus. The claimant estimated that his request to use the bathroom was denied 30 to 40% of the time. The claimant did experience some difficulties with finding available restrooms while he was in the course of operating his bus route. If he had to urinate he would use a cup on the bus. If he had to defecate, he would normally "hold it," but he couldn't always, and had on occasion had an accident employing this strategy. The claimant conceded that there were restroom facilities available for his use when he was at the Yonkers bus depot, but explained that he was only at the Yonkers bus depot while picking up or dropping off his bus at the start and end of his work shift. The remainder of his work day was spent on the bus that he was operating. The claimant recalled that he first began experiencing rectal problems in 2005, that he sought medical treatment for his rectal symptoms in 2006. He underwent a surgical procedure for his rectal problems in 2006, which caused him to miss time from work. The claimant asserted that he did not experience any similar rectal problems prior to working for the SIE. The claimant recalled that Dr. Henoch was the first treating doctor to advise him that his rectal problems were related to his employment. The claimant informed his supervisors that he was unable to work due to these conditions. He was sent to the SIE's doctor and thereafter taken out of work. The claimant ceased working for the employer on January 7, 2009, due to his medical conditions.
Upon cross-examination, the claimant acknowledged that he worked for the employer as a bus driver from 2001 to 2006, and that he was transferred to the position of a utility worker in 2006 and began losing time from work in 2006. He worked in the position of utility worker until his employment ended on January 7, 2009. While employed as a utility worker claimant worked at a depot and had bathrooms available to him. The claimant testified that while working as a bus driver, other than the beginning and end of his shift, he could not use the bathroom in the middle of a line and could only use the bathroom at the end of the line if he secured permission from his supervisor, which did not often happen as the SIE did not want the buses to be left unattended. The claimant stayed with the bus on lunch breaks or in instances when the bus he was driving broke down.
The SIE failed to produce a witness at the May 25, 2011, hearing.
In a decision filed on May 31, 2011, the WCLJ disallowed the claims for anal fistulae and perianal abscesses, concluding that Crohn's disease in and of itself can cause these conditions, and the claimant's medical condition and disability are not causally related to his occupation as a bus operator.
"It [i]s claimant's burden to establish a causal relationship between his employment and his disability by competent medical evidence (see Matter of Sale v Helmsley-Spear, Inc., 6 AD3d 999 ; Matter of Keeley v Jamestown City School Dist., 295 AD2d 876 ). To this end, a medical opinion on the issue of causation must signify 'a probability as to the underlying cause' of the claimant's injury which is supported by a rational basis (Matter of Paradise v Goulds Pump, 13 AD3d 764 ; see Matter of Van Patten v Quandt's Wholesale Distribs., 198 AD2d 539 ).'[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship' (Matter of Ayala v DRE Maintenance Corp., 238 AD2d 674 , affd 90 NY2d 914 ; see Matter of Zehr v Jefferson Rehab. Ctr., 17 AD3d 811 )" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 ).
Claimant testified that he had to hold his bowel movements while driving on his bus route and his requests at other times to use the bathroom (and leave his bus unattended) were met with resistance from his superiors. Although the SIE argues that claimant's testimony in this regard is not credible, the SIE failed to produce a witness to rebut claimant's assertions. Dr. Henoch found that the claimant's conditions were causally related to his employment as a bus driver for the SIE. Dr. Henoch's opinion was not rebutted by the SIE, who failed to produce a medical opinion on the issue of causal relationship. That Dr. Henoch was not a specialist in gastrointestinal disorders does not require the Board to disregard his uncontradicted opinion. A finding of causal relationship is further supported by the fact that the claimant did not have a history of suffering from anal fistulae and perianal abscesses prior to working as a bus driver for the employer. That the claimant was diagnosed with Crohn's disease in 2011 does not affect the ultimate conclusion that the claimant's conditions are causally related, as there is no evidence that claimant was symptomatic with respect to Crohn's disease while experiencing the symptoms related to anal fistulae and perianal abscesses in 2005, 2006 and 2007. The SIE's argument that claimant's Crohn's disease may have caused the claimant's anal fistulae and perianal abscesses is nothing more than speculation and is not supported by the medical evidence in the record.
Therefore, the Full Board finds, upon review of the evidence of record, that the claimant's anal fistulae and perianal abscesses are causally related to his employment as a bus driver with the SIE, and that there is a consequential relationship for the claimant's ileostomy.
The Board Panel further finds that the case should be returned to the trial calendar to consider the issues of causally related right leg and back and consequential psychiatric conditions.
ACCORDINGLY, the WCLJ decision filed on May 31, 2011, is REVERSED. This claim is established for anal fistulae, perianal abscesses and consequential ileostomy. The case is continued.