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 24, 2013.
The issue presented for Mandatory Full Board Review is whether the claimant's psychiatric condition was a latent condition as defined in Article 8-A.
The Workers' Compensation Law Judge (WCLJ) found that Article 8-A of the Workers' Compensation Law (WCL) was inapplicable to this claim for causally related psychiatric illness based on a determination that the claimant's condition was not latent. The WCLJ disallowed the claim on the ground that it was not timely filed pursuant to WCL § 28
The Board Panel majority affirmed the WCLJ's decision.
The dissenting Board Panel member found that the claimant's psychiatric condition was a latent condition as defined by Article 8-A, because while minor symptoms may have been present, the disease itself did not manifest for several years. The dissenting Board Panel member found that Article 8-A is applicable to this claim for psychiatric illness and would amend the claimant's established claim to include the major depressive disorder.
On February 1, 2013, the claimant filed an application for Mandatory Full Board Review.
On February 26, 2013, the carrier filed a rebuttal contending that claimant's application for Mandatory Full Board Review was insufficient and requesting that the majority opinion be affirmed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This is a controverted claim for depression and anxiety, which resulted from the work that the claimant performed at Ground Zero as an asbestos handler.
Claimant filed a WTC-12 (Registration of Participation in World Trade Center Rescue, Recovery and /or Clean-up Operations) on March 19, 2010, indicating that he performed asbestos removal at Ground Zero from September 17, 2001, to December 10, 2001.
In a C-3 (Employee Claim) dated November 8, 2010, the claimant asserted that he worked as an asbestos handler at Ground Zero, and that he developed a psychiatric condition as a result thereof.
In an "Attending Psychologist's Report" dated October 19, 2010, claimant's treating psychologist, Dr. Carcamo, diagnosed the claimant with causally related "Major Depressive Disorder." Dr. Carcamo noted that the patient indicated that he was exposed to emotional and traumatic experiences during the course of his employment as a clean-up worker at the World Trade Center sites, and that "there is no history of pre-existing psychological impairment."
In a Practitioner's Report of Independent Medical Examination (IME) dated May 26, 2011, the carrier's consultant, Dr. Head, diagnosed the claimant with causally related depression, but concluded that the claimant was not disabled.
During a hearing on August 23, 2012, the claimant testified that he worked as an asbestos handler performing cleanup work at Ground Zero from September 17, 2001, until December 10, 2001. The claimant testified that during the performance of the cleanup duties he frequently observed body parts and he was evacuated from the building many times. According to the claimant, the evacuations made him nervous and he would feel panicked and afraid. The claimant indicated that he continued to have problems with panic from the time he was at Ground Zero and going forward, even though he no longer visits the Ground Zero area.
In a notice of decision filed on August 29, 2012, the WCLJ found that Article 8-A was inapplicable to the claimant's claim for causally related psychiatric illness based on a determination that the psychiatric problems suffered by the claimant were not latent. The WCLJ determined that the claimant's claim for psychiatric illness was barred by WCL § 28.
WCL § 23 provides, in pertinent part, the following:
Within thirty days after notice of the decision of the board...an appeal may be taken to the appellate division of the supreme court, third department...provided, however, that if the decision or determination was that of a panel of the board and there was a dissent from such decision or determination other than a dissent the sole basis of which is to refer the case to an impartial specialist, any party in interest may within thirty days after the notice of the filing of the board panel's decision...make application in writing for review thereof by the full board.
No additional requirements with respect to the filing of an application for Mandatory Full Board Review are set forth in the WCL or the regulations. In the present case, the claimant's application for Mandatory Full Board Review was submitted in writing within 30 days of the filing of the Board Panel decision, and requested review of such Board Panel decision. Therefore, the claimant's application for Mandatory Full Board Review is sufficient.
Turning now to the applicability of Article 8-A to the claimant's claim for psychiatric illness, a condition is latent when it is present, but not active. In recent cases, the Board has consistently held that although a claimant may experience some symptoms prior to being diagnosed with a condition, a condition is still considered latent when the condition takes time to fully develop or manifest despite the existence of prior minor symptoms (see Matter of Restoration Technologies, 2012 NY Wrk. Comp. 0129902; Matter of NYC Police Dept/Traffic Agency, 2012 NY Wrk. Comp. 0304637; NYC Transit Authority, 2012 NY. Wrk. Comp. 00740514; Matter of Hornell Police Department, 2012 NY Wrk. Comp. 0284479; Matter of LVI Environmental, 2011 NY Wrk. Comp. 709980; Matter of Complete Environmental, 2011 NY Wrk. Comp. 746177).
In the present case, although the claimant experienced fear and anxiety while working at Ground Zero and from time to time after the completion of his clean-up duties at Ground Zero, his major depressive disorder took time to develop, as evidenced by the first diagnosis coming in 2010. Thus, the claimant's psychiatric condition was latent, because while minor symptoms may have been present, the condition did not manifest itself for several years.
Accordingly, the Full Board finds that because claimant's major depressive disorder was latent, the claim for benefits based on that condition is governed by Article 8-A; that a claim for that condition was timely filed pursuant to Article 8-A; and that the condition is causally related to claimant's employment.
ACCORDINGLY, the WCLJ decision filed on August 29, 2012, is AMENDED to find that this claim is established for major depressive disorder, but is in all other respects affirmed. No further action is planned by the Board at this time.