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Case # 00544141
Date of Accident: 03/04/2005
District Office: NYC
Employer: Park & 71st Corp
Carrier: Paramount Insurance Company
Carrier ID No.: W168256
Carrier Case No.: 11-206124
Date of Filing of Decision: 10/02/2013
Claimant's Attorney: Turley, Redmond, Rosasco & Rosasco, LLP
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

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 December 27, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant's claim should be amended to include causally related, consequential adjustment disorder, anxiety and depression.

The Workers' Compensation Law Judge (WCLJ) amended the claimant's established claim to include consequential psychiatric disorder.

The Board Panel majority affirmed. The Board Panel majority found that the stress claimant felt was a result of the loss of his job; that the claimant's job loss was due to absenteeism; and that the claimant's absenteeism was due his work-related injuries.

The dissenting Board Panel member found no causal relationship between the claimant's psychiatric disorder and his March 4, 2005 accident and resulting disability.

On January 23, 2013, the carrier filed an application for Mandatory Full Board Review. No rebuttal was filed.

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

FACTS

This case is established for injuries to the claimant's back, right wrist and left wrist, which were sustained on March 4, 2005, when claimant slipped and fell in the course of his employment as a doorman. Following the accident claimant returned to work, but had some intermittent lost time due to his work-related disability. The employer terminated the claimant's employment on September 2, 2009.

In a Practitioner's Report of Independent Medical Examination (IME) dated March 23, 2010, Dr. Head noted that the claimant reported that he missed between five to eight weeks of work per year in the period between March 4, 2005, and August 15, 2009, due to low back pain and pain radiating from his low back down his leg. The claimant indicated that he re-injured his back on August 5, 2009, while lifting luggage, and that the re-injury of his back caused him to miss work for approximately 2 weeks. According to the claimant he had never missed two weeks of work at one time prior to August 2009. The claimant reported that the employer fired him on September 2, 2009. According to the claimant, the only other time that he had lost time from work was during the time period of October 2008 through March 15, 2009, due to removal of a tumor from the long finger on his left hand. The claimant reported that in August of 2008, his supervisor changed his shift because of the amount of time that the claimant was missing from work. The claimant's supervisor told the claimant that his absences were costing too much money in overtime and were upsetting his co-workers because they were not being given sufficient notice of the claimant's absences. The claimant indicated that he was upset about the situation, but reported that the situation did not cause him to experience anxiety, depression or uncertainty with respect to his job security. The claimant reported experiencing nightmares approximately two months after the accident. The claimant indicated that the nightmares occurred two or three times per week for about a year. The claimant reported that he is fearful of bending down, turning his body or reaching for objects up high because he fears that his low back and left leg might go out.

Dr. Head noted that the claimant did not seek psychiatric care or psychological care until after he was fired. Dr. Head further noted that the claimant did not begin to experience symptoms of stress and anxiety until after his position was terminated. Dr. Head indicated that he performed a psychiatric examination of the claimant and diagnosed the claimant with "Adjustment Disorder with Mixed Anxiety and Depressed Mood over being fired." Dr. Head further indicated that the claimant was "status post physical injury with various subjective complaints of pain" and is experiencing "worry over whether he will get his job back." Dr. Head concluded that "[Claimant's] situation is somewhat complex. The central issue for [the claimant] at this time, by his account, is not his back pain...but whether he will be able to get his job back." Dr. Head further concluded that:

The [claimant] is claiming that he experiences sporadic disability due to his back condition only, not due to any psychiatric condition. In my opinion, while he is now moderately depressed over being fired, he is actually eager to return to work. His depression would be relieved if he were to be allowed to return to work. In my opinion, he is not psychiatrically disabled.

In a medical narrative dated July 12, 2010, claimant's treating psychologist, Dr. Herman, stated:

[Claimant] continues to experience marked back pain. This has made it difficult for him to function and to enjoy his life. He worries about his inability to ever work again because of his back pain and the ways in which this has generally impacted upon his life. He finds it difficult to socialize, to help his mother, and to do various household tasks. He is depressed and anxious, has difficulty sleeping, and is generally worried about the future. He still expresses anger at his employer but on another level feels that he is incapable of working at this time.

In a medical narrative dated August 16, 2010, Dr. Herman, indicated that the claimant suffers from anxiety and depression which directly stem from his back injury and the way that the claimant's injury negatively impacts his life.

At a hearing on February 8, 2011, the parties conceded that claimant was entitled to an award totaling four weeks of intermittent lost time between June 11, 2007, and October 7, 2008, and that the claimant had no compensable lost time between October 7, 2008, and February 9, 2011. Those findings and awards were reflected in a decision filed February 11, 2011. That decision was not appealed by either party.

During a deposition on April 15, 2011, Dr. Herman testified in accordance with his medical reports. According to Dr. Herman, he began treating the claimant on September 17, 2009. Dr. Herman testified that the claimant reported that he had worked as a doorman for 20 years, and that on March 4, 2005, he slipped and fell injuring his back and right wrist. Dr. Herman testified that he subsequently treated the claimant on 36 occasions. According to Dr. Herman, the claimant reported being fired from his job because he had missed too much work due to his work-related injuries. Dr. Herman diagnosed the claimant with an adjustment disorder, anxiety and depression, and he opined that these conditions are causally related to the claimant's work-related accident.

During a deposition on June 2, 2011, Dr. Head testified in accordance with his IME report. The doctor diagnosed the claimant with an adjustment disorder, anxiety, and a depressed mood. The doctor opined that the conditions were not work related because the claimant stated that he was depressed because he lost his job. He emphasized that the claimant was not depressed due to the pain of the work injuries. On cross-examination, Dr. Head conceded that, as he understood it, the claimant lost his job as a result of the time that he missed from work due to his work injuries.

In a reserved decision filed on September 27, 2011, the WCLJ amended the claim to include consequential psychiatric disorder.

LEGAL ANALYSIS

The courts have long recognized that a consequential injury is compensable, provided there is a sufficient causal nexus between the initial work-related injury for which a claim is established and the subsequent injury (see e.g. Matter of Barre v Roofing & Flooring, 83 AD2d 681 [1981]; Matter of Pellerin v N.Y.S. Dept. of Corrections, 215 AD2d 943 [1995], lv den 87 NY2d 806 [1996], Matter of Scofield v City of Beacon Police Dept., 290 AD2d 845 [2002]). Whether a second injury is a consequence of the earlier injury is a factual issue for the Board to resolve and it depends upon the existence of a sufficient relationship between the two injuries (see Scofield v City of Beacon Police Dept., 290 AD2d 845, 737 NYS2d 132 [3d Dept. 2002]). A compensable accident need only be a contributing cause of a resulting mental injury (see Smith v Cornell University et al., 77 A.D.3d 1007 [2010]).

In the present case, both Dr. Herman and Dr. Head diagnosed the claimant with adjustment disorder, anxiety and depression, and both doctors agree that the aforementioned disorders are causally related to claimant's loss of his job. However, the evidence in the record does not support the claimant's contention that his employment with the employer was terminated due to excessive absences, which were due to his work-related back injury. By a decision filed February 11, 2011, claimant was found to have had no compensable lost time between October 7, 2008, and February 9, 2011, and neither party appealed that decision. Therefore, the record establishes that the claimant had no lost time due to his work-related disability during the 11 months immediately preceding his termination on September 2, 2009, which undermines claimant's assertion that he was terminated on that date because he had lost too much time from work as a result of his compensable injury.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant's psychiatric disorders are not consequential to his established work-related injuries.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on September 27, 2011, is REVERSED, and the claim for consequential adjustment disorder, anxiety and depression is denied. No further action is planned by the Board at this time.