The Full Board, at its meeting held on October 22, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on February 4, 2013.
The issue presented for Mandatory Full Board Review is whether the self-insured employer (SIE) is entitled to reimbursement from the Special Funds pursuant to Workers' Compensation Law (WCL) § 15(8)(d).
In a decision filed on December 8, 2011, the Workers' Compensation Law Judge (WCLJ) found that WCL § 15(8) does not apply.
In a Memorandum of Decision, filed on February 4, 2013, the Board Panel majority affirmed, finding insufficient evidence that the claimant's pre-existing asthma and allergies are a hindrance to the claimant's employability in general.
The dissenting Board Panel member would have found that WCL § 15(8) applies to this claim, as the evidence supports a finding that the claimant's employability is hindered by his pre-existing allergies and asthma.
In its application for Mandatory Full Board Review, filed with the Board on March 6, 2013, the SIE contends that WCL § 15(8) should be found to apply as the claimant's prior medical records show that the claimant has had longstanding, pre-existing allergy and asthma conditions that have been a hindrance to his employment at the SIE. The SIE noted that the claimant's prior medical records document that the claimant's symptoms were worse when he was at work, and that he had to stay at home from work on a few occasions because of the increased symptoms.
In its rebuttal, filed with the Board on March 26, 2013, the Special Funds contends that the majority's opinion was correct as the SIE failed to meet its burden of proof to show that the claimant's alleged pre-existing condition of asthma or wheat allergies hindered or was likely to hinder the claimant's job potential. The Special Funds pointed out that the evidence illustrates that the claimant was working in a bakery at the time of the compensable back injury. Last, the Special Funds contends that the medical records submitted by the SIE in support of its application for WCL § 15(8) relief were not proper as they were submitted after July 1, 2010, in violation of WCL § 15(8)(h)(2)(A).
Upon review, the Full Board votes to adopt the following findings and conclusions.
On September 27, 2004, the claimant, who worked in the bakery department of the SIE grocery store, was injured while repeatedly reaching into a bowl to obtain cannoli dough. The case was accepted and established for a work-related injury to the claimant's low back. The claimant's average weekly wage was set as $799.88.
On February 25, 2005, the SIE submitted a form C-250, Notice of Claim for Reimbursement Out of the Special Disability Fund Under Section 15, Subd. 8, indicating the claimant had the following prior physical impairments incurred prior to September 27, 2004: (1) right ankle, (2) asthma [on medication], and (3) work place allergies to flour.
The carrier's orthopedic consultant, Dr. Bauer, performed a records review on May 6, 2010, and issued a corresponding report. Dr. Bauer opined that, due to the claimant's pre-existing and permanent impairments of asthma and wheat allergy, the claimant's overall disability is materially and substantially greater than that which would have occurred from the work-related September 27, 2004, low back injury alone. Dr. Bauer explained that the claimant's asthma and allergy impaired the claimant's employment before and after September 27, 2004, as the pre-existing conditions remained uncontrolled despite the use of medications, and remain unresolved. Dr. Bauer opined that the claimant's asthma and allergy is a "hindrance to employment that would necessitate employment in areas of certain types with shortness of breath and allergic symptoms as recorded in the medical records."
In support of its application for WCL § 15(8) relief, on May 21, 2010, the SIE submitted numerous pages of medical records (with multiple duplicates), covering medical treatment from 1997 through 2010, including medical treatment for asthma and allergy issues, as well as for the underlying compensable back injury. Although many of the handwritten records were difficult to read, it appears that the claimant missed a total of 4 days from work between 1997 and 2007, for issues related to asthma or allergies (October 8, 2002, June 12, 2003, April 12, 2006, and May 9, 2007). A report from March 9, 2001, indicated the claimant's cough "has always been worse at night and at work - bakery. If has a few days off - does not cough." A report from October 8, 2002, indicated the claimant's eyes were red and sore at work due to new rye flour they were using, the claimant was a baker and goggles helped, and he did not go to work as his eyes were very red and tearing up. A report from March 10, 2003, indicated that the claimant's eyes were irritated and he had increased tearing and his symptoms were better when he was away from work. A report from May 9, 2007, indicated that the claimant works in a bakery and the different flours seem to set off his asthma symptoms, as do seasonal allergies. A report from May 25, 2007, indicated that "The patient presents today for a [follow-up] of allergic rhinitis. Needs refill of Flonase. I wonder if his work might pay for his medicines, as it seems to be work related sometimes."
On June 9, 2011, another of the SIE's consultants, Dr. Lefebvre, examined the claimant and reported that the claimant had a 33.33% loss of wage earning capacity which was permanent in nature. Dr. Lefebvre's report also noted that, while the claimant has a medical history of an allergy to rye flour, medically the claimant is in good health.
On June 30, 2011, the SIE filed a form RFA-2 (Carrier's/Employer's Request for Further Action), requesting a hearing on permanency and WCL § 15(8).
In response, a hearing was set for September 22, 2011, to address the issues raised by the SIE. However, the claimant did not appear at the hearing. The corresponding decision filed on August 12, 2011, continued the case for the claimant's testimony on the issues of permanency and WCL § 15(8).
Another hearing was scheduled for September 22, 2011, but once again the claimant did not appear at the hearing. The SIE indicated that an application for WCL § 15(8) was filed based on Dr. Bauer's opinion that the claimant's overall medical condition is materially and substantially greater due to the claimant's pre-existing permanent conditions of asthma and wheat allergies. The SIE contended that the claimant's wheat allergy was a hindrance from certain types of employment, such as in a bakery. The Special Funds responded that there has been no demonstration of a hindrance to employment, the claimant was already working in a bakery, and that the Special Funds was waiting for claimant's testimony prior to having a records review performed. The WCLJ found that since no party asked for any further development of the record other than the claimant's testimony, and no party made any effort to subpoena the claimant, the record is closed on the issues of permanency and WCL § 15(8). The WCLJ directed the parties to submit memoranda of law. The WCLJ's findings were memorialized in a decision filed on September 27, 2011. No party sought review of that decision.
By a reserved decision filed on December 8, 2011, the WCLJ classified the claimant permanently partially disabled with a 33.33% medical impairment. The WCLJ further found that WCL § 15(8) does not apply, as there is no evidence in the file that the claimant's work had been limited by the claimant's asthma or wheat allergy before his work accident. The WCLJ further found that there was no evidence that the claimant's respiratory symptoms have had or are likely to have any effect on his work. The WCLJ noted that the claimant is a baker who has been able to work steadily despite the occasional respiratory symptoms.
WCL § 15(8)(h)(2)(A)
"No carrier or employer, or the state insurance fund, may file a claim for reimbursement from the special disability fund after July first, two thousand ten, and no written submissions or evidence in support of such a claim may be submitted after that date" (WCL § 15[h][A]).
The Full Board finds that contrary to the Special Funds' assertions, the SIE submitted the claimant's medical records on May 21, 2010, prior to July 1, 2010, and therefore the records were filed timely pursuant to WCL § 15(8)(h)(2)(A).
WCL § 15(8)(d)
For any case with a date of accident or disablement from August 1, 1994, to June 30, 2007, inclusive, an employer or its carrier may obtain reimbursement from the Special Disability Fund for compensation and medical benefits paid after 260 weeks of disability, provided the employer can show that (1) the claimant has a pre-existing permanent physical impairment that hinders, or is likely to hinder, job potential; (2) the claimant has a subsequent work-related injury or occupational disease; and (3) the claimant has a permanent disability caused by both conditions that is materially and substantially greater than that which would have been caused by the work-related condition alone (see WCL § 15[d]; § 15[h][A]; Matter of Grabinsky v First At Nursing Servs., 79 AD3d 1494 ; Matter of Guarascio v Spargo Wire Co., 32 AD3d 1148 ). For the first requirement, "the issue is not whether the pre-existing condition is an obstacle or likely to become a handicap to the particular job, but rather whether it is a hindrance to or limits [the claimant's] employability generally" (Matter of De Dominic v Schlitz Brewing Co., 30 AD2d 578  [citations omitted]).
The SIE's consultant opined that the claimant's asthma and allergy is a hindrance to employment that would necessitate employment in areas of certain types due to shortness of breath and allergic symptoms. The medical records suggest that at times the claimant complains that his work conditions affected his symptoms, and he lost about four days from work between 1997 and 2007 due to his asthma or allergy type symptoms. However, despite the claimant's asthma and allergy to flour, the record supports that he was able to work full time in a bakery, without restrictions, and lost minimal time from work. Therefore, the record does not support that the claimant's asthma and allergies were a hindrance to his employment.
The Full Board finds that the preponderance of the evidence in the record supports a finding that the SIE failed to meet its burden of showing that WCL § 15(8) applies in this claim, and the SIE's claim for reimbursement pursuant to WCL § 15(8) is denied.
ACCORDINGLY, the WCLJ decision filed on December 8, 2011, is AFFIRMED. No further action is planned by the Board at this time.