The Full Board, at its meeting on September 17, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on January 11, 2013.
The issue presented for Mandatory Full Board Review is whether the claimant's wage loss after April 8, 2011, was causally related to her accidental injury.
The Workers' Compensation Law Judge (WCLJ) found that the claimant's wage loss subsequent to April 8, 2011, was related to her accidental injury.
The Board Panel majority modified the WCLJ's decision, finding that the claimant's wage loss for the period from April 8, 2011, to November 11, 2011, was unrelated to her established injury, and rescinded awards for that period.
The dissenting Board Panel member would have affirmed the WCLJ's decision.
On February 10, 2013, the claimant filed an application for Mandatory Full Board Review, arguing that that her loss of wages subsequent to April 8, 2011, was causally related to her established knee injury.
On March 12, 2013, the self-insured employer filed a rebuttal asserting that the claimant's wage loss subsequent to April 8, 2011, is completely unrelated to her work-related injury.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This case is established for an injury to the left knee sustained on March 1, 2009, by the claimant, then a 29 year old hospital clerical worker, when a printer and the table it was placed on collapsed and fell on her left leg. The average weekly wage has been set at $567.38.
Compensation was awarded for various periods at various rates up to January 1, 2011. In the decision filed on March 1, 2011, the WCLJ found no medical evidence for the period from January 1, 2011, to February 1, 2011, and no compensable lost time for the period from February 1, 2011, to February 24, 2011.
The claimant had an MRI of her left knee on September 1, 2009. The MRI report indicated that there was no evidence of internal derangement of her left knee.
In a medical report dated October 19, 2010, the claimant's treating orthopedic surgeon, Dr. Paul, indicated that the claimant had lower back and left knee pain, suffered from lumbar spine derangement and internal derangement of her left knee and that she could not return to work because she was totally disabled. Dr. Paul also noted that the claimant was awaiting knee surgery that had been authorized, but rescheduled.
There is a lapse in medical evidence from October 2010 to May 2011. In a medical report dated May 10, 2011, Dr. Paul indicated that the claimant had pain, would be rescheduled for surgery, and could not return to work because she was totally disabled.
In a report dated October 19, 2011, the claimant's consultant, Dr. Wert, indicated that based upon his examination, the claimant's left knee was normal, and the claimant had no accident related orthopedic disability.
The claimant underwent arthroscopic left knee surgery on November 8, 2011. In a post-op report dated December 19, 2011, it is indicated that the claimant did, in fact, have internal derangement of her left knee.
At the hearing held on November 21, 2011, the claimant testified that the employment in which she was injured was terminated three months after the date of accident and that she subsequently obtained work as a clerical worker in another hospital in January 2011, through a staffing agency. Her duties included clerical tasks such as scheduling appointments, making reservations, correspondence, and checking calendars. She further testified that such employment ended on April 8, 2011. On that day, she was asked by her supervisor to carry some boxes of copy paper. She advised her supervisor that she was unable to carry the boxes. At the end of that day, she was called into the HR department at the hospital and told she was no longer needed. She did not work between April 8, 2011, and November 11, 2011, because her left leg hurt her and she could not stand for long periods of time. She is still enrolled with the staffing agency but indicated there is no work for her at the present time due to the economy. She is still able to do the work she was doing in March 2009. Her doctor advised her to perform light duty work with no prolonged sitting or standing. She underwent (authorized) arthroscopic knee surgery on November 8, 2011. She started working at a job in the retail industry on November 11, 2011, out of necessity, but was having difficulty performing her required duties.
A letter from the staffing agency was offered into evidence. The letter was dated October 28, 2011. It indicated that the claimant worked at her last assignment from January 2011 until April 2011 as an administrative assistant, and that she was let go due to a policy violation. The letter also indicates that the claimant had been actively seeking employment through the agency.
No other witnesses testified as the self-insured employer failed to produce a witness at the hearing held on November 21, 2011, to counter the claimant's testimony, and was precluded from doing so.
In the decision filed on November 25, 2011, the WCLJ found that the claimant testified credibly and that her wage loss subsequent to April 8, 2011, was related to her established accidental injury.
"While a reduced earnings award may be denied where the reduction in earning capacity results from age, economic conditions or other factors unrelated to the disability, such an award will not be disturbed absent proof that the reduction was solely due to such unrelated factors" (Matter of Coyle v Intermagnetics Corp., 267 AD2d 621  [internal quotation marks and citations omitted]).
It is undisputed that the claimant resumed working in a clerical position similar to one that she was working in when she was injured, in January 2011, and that she was terminated from that position on April 8, 2011. The claimant testified at the hearing held on November 21, 2011, concerning the nature of the duties of the employment and the circumstances of the termination. The claimant testified that she obtained the hospital clerical job through a staffing agency. She indicated that she was advised at the end of her shift on April 8, 2011, without explanation, that her employment was over. However, she also testified that earlier that day she had declined to lift a heavy box of copy paper because of her medical restrictions. She also indicated that, after the termination of her employment, she remained enrolled with the staffing agency, but had not received any further calls for employment prior to undergoing arthroscopic surgery on her left knee on November 8, 2011.
The claimant's testimony was vague as to the circumstances of the termination of her employment on April 8, 2011. She did not know why she had been terminated. Furthermore, the staffing agency's letter indicated that the claimant was terminated for a "policy violation." In addition, there is a gap in medical evidence in the file for the time period in question which makes it impossible to ascertain whether the claimant had lifting, squatting, or any restrictions, imposed upon her at the time in question. Moreover, in the absence of a finding of permanency, there is no presumption of a continuing disability under the Workers' Compensation Law (see Matter of Valentin v THB Intermediaries Corp., 10 AD3d 826 ).
Although claimant testified that she did not work between April 8, 2011, and November 11, 2011, because her left leg hurt her and she could not stand for long periods of time, at the time claimant ceased working on April 8, 2011, no medical evidencing a causally related disability had been submitted since October 19, 2010. Dr. Paul subsequently submitted a May 10, 2011, report indicating that claimant was totally disabled. However, claimant also testified that subsequent to April 8, 2011, she continued to be enrolled with the staffing agency through which she obtained previous positions, but that there is no work for her at the present time due to the economy. She testified that she is still able to do the clerical work she was doing when she was injured in March 2009. Therefore, the record supports a finding that claimant's reduction in earnings subsequent to April 8, 2011, was due to factors solely other than her disability.
Accordingly, based upon a review of the record and the preponderance of the evidence in the record, the Full Board finds that that the claimant's wage loss after April 8, 2011, was not causally related to her accidental injury.
ACCORDINGLY, the WCLJ decision filed on November 25, 2011, is MODIFIED to find that the claimant's wage loss for the period from April 8, 2011, to November 11, 2011, was unrelated to her established injury, to rescind the awards for the periods from April 8, 2011, to November 8, 2011, and from November 8, 2011, to November 11, 2011, and to rescind the attorney's fee. No further action is planned by the Board at this time.