The Full Board, at its meeting held on September 17, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on October 1, 2012.
The issue presented for Mandatory Full Board Review is whether the claimant has submitted prima facie medical evidence of a consequential left arm injury.
The Workers' Compensation Law Judge (WCLJ) noted that the claimant had raised a claim for a consequential motor vehicle accident and injuries sustained on August 31, 2010, and directed the claimant to produce clarifying medical evidence to describe how the motor vehicle accident in question related to the established injuries of the case.
The Board Panel majority rescinded the WCLJ's decision, finding prima facie medical evidence of the alleged consequential injuries. The Board Panel majority returned the case to the hearing calendar for further development of the record.
The dissenting Board Panel member would have affirmed the WCLJ's decision.
The (SIE) filed an application for Mandatory Full Board Review on October 29, 2012, arguing that the dissenting Board Panel member properly found that the claimant has not yet produced prima facie medical evidence for a consequential arm injury, and that until such evidence is produced, the case should remain closed.
In a rebuttal filed with the Board on November 26, 2012, claimant requested that the decision of the Board Panel majority be affirmed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This claim is established for injuries to the back, neck, and right elbow that resulted from an accident on September 5, 2003.
In a decision filed on May 18, 2010, the WCLJ found insufficient evidence to support awards for lost time, noted that the claimant did not appear at the hearing or was otherwise unprepared to proceed, and marked the case no further action.
Dr. Patel, the claimant's treating physician, submitted a report of an examination on August 4, 2010, noting that the claimant was there for follow up of chronic back pain, and for medication renewal. The report states that the claimant "[w]ill follow up" but contains no indication that the next examination was scheduled for any particular date.
On October 11, 2011, the claimant's attorney filed a request for further action (form RFA-1LC) "to address consequential motor vehicle accident [on] 8/31/10." Attached to the RFA-1LC were 48 pages of medical records of the claimant's treatment for his injuries that resulted from a motor vehicle accident on August 31, 2010. The records show that the claimant severely injured his left arm in the accident and that his left arm had to be amputated below the elbow.
A hearing was scheduled for January 12, 2012, to consider the issue of a consequential motor vehicle accident. The claimant was not present at the hearing, but the claimant's attorney explained that on or about August 31, 2010, the claimant was driving to Dr. Patel's office for a workers' compensation visit and had a motor vehicle accident resulting in a severed left arm, and post-traumatic stress disorder. The claimant's attorney requested a finding of a consequential motor vehicle accident. The SIE argued that the case should remain closed because there is insufficient medical documentation to move forward with the claim of a consequential motor vehicle accident. The SIE explained that there is nothing in the medical documentation to indicate a trip to the doctor or a work-related injury. The SIE requested that the case be closed pending the claimant's submission of prima facie medical evidence of a consequential injury. The SIE argued that in order for the consequential claim to move forward, the claimant needs to submit a report from his attending physician with a history to report exactly what was happening at the time the injury occurred; to explain why he was there at the time of the injury. The claimant's attorney responded and argued that the records attached to the RFA-1LC do connect the motor vehicle accident to the claimant's work injury. The claimant's attorney conceded that there is no documentation in the record that contains a history that the claimant was going to Dr. Patel's office for a workers' compensation injury. However, the claimant's attorney indicated that it is "something that can be obtained" (Hearing Transcript, 1/12/12, p. 5).
The WCLJ found that the claim for a consequential motor vehicle accident and injuries on August 31, 2010, should be held in abeyance "pending production of clarifying medical evidence describing how the motor vehicle accident in question is related to the established injuries of this case" (Hearing Transcript, 1/12/12, pp. 5-6).
The WCLJ's findings were set forth in a decision filed on January 18, 2012, and the claimant filed an application for administrative review.
"[O]ff-duty injuries sustained while traveling to or from treatment for a compensable injury may be considered consequential to the compensable injury (see Matter of Font v New York City Bd. of Educ., 170 AD2d 928 )" (Matter of Schuyler v City of Newburgh Fire Dept., 292 AD2d 702 ).
Here, the claimant requested further action to address whether the arm injury he sustained in motor vehicle accident on August 31, 2010, was consequential to his established injuries. The Full Board notes that it is undisputed that claimant's arm was severed. Therefore, it was not proper for the WCLJ to direct the claimant to produce "clarifying medical evidence describing how the motor vehicle accident in question is related to the established injuries of this case."
The Full Board finds that claimant has produced evidence that he was injured in a motor vehicle accident on August 31, 2010, and the cause of that injury is not in dispute. Whether that injury is a compensable consequential injury does not depend on medical evidence on the issue of causation, but is instead a legal question which depends on whether or not claimant was travelling to obtain causally related medical treatment at the time of his motor vehicle accident. Whether claimant had an appointment for medical services in connection with his established injuries is not the only issue, nor by any means dispositive of the matter. Even if there was a medical appointment that day, there may be other issues in dispute, such as whether claimant's appointment was for an unrelated condition, or whether he had detoured from the appointment at the time of the crash. As such, proof of non-medical facts such as the date, time, location, and surrounding circumstances of the accident, is required.
Therefore, the Full Board finds that the record contains prima facie medical evidence of a left arm injury suffered in a motor vehicle accident on August 31, 2010, and that the matter should be remanded to the calendar for a hearing on the issue of whether the left arm injury should be deemed a consequence of claimant's established injuries.
ACCORDINGLY, the WCLJ decision filed January 18, 2012, is RESCINDED, and the case is restored to the calendar for further development of the record, including the claimant's testimony on the alleged consequential injuries and the circumstances surrounding the accident. Prima facie medical evidence is found for the alleged consequential injuries. The case is herein referred to the hearing calendar for further development of the record. The case is continued.