The Full Board, at its meeting held on February 11, 2014, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on June 6, 2013.
The issue presented for Mandatory Full Board Review is whether the carrier is entitled to reimbursement from the Special Funds Conservation Committee (Special Funds) pursuant to Workers' Compensation Law (WCL) § 15(8)(d).
In a decision filed on May 1, 2012, and amended on May 7, 2012, the Workers' Compensation Law Judge (WCLJ) found that WCL § 15(8)(d) applied.
In a Memorandum of Decision, filed on June 6, 2013, the Board Panel majority found that the evidence submitted by the carrier was insufficient to establish liability under WCL § 15(8)(d).
The dissenting Board Panel member would have found that WCL § 15(8)(d) applies in this matter.
The carrier filed an application for Mandatory Full Board Review on July 5, 2013.
Special Funds filed a rebuttal on July 24 2013.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The case is established for work-related injuries to the claimant's low back and tailbone, resulting from an accident that occurred on January 30, 2007. The claimant's average weekly wage has been set at $262.45.
On June 5, 2008, the carrier 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 physical impairments that incurred prior to January 30, 2007: asthma, back, right hand, hepatitis, left knee, right knee, migraines, neck, psychiatric condition, right wrist, "meth" addiction, and bipolar disorder.
On September 14, 2009, the carrier's consultant, Dr. Hughes, submitted a report which concluded that the claimant's pre-existing impairments of bipolar disorder, migraine headaches and drug abuse made her current disability materially and substantially greater.
The claimant testified on April 25, 2012, that she started seeing a counselor for her bipolar disorder when she was 13 years old and started taking medication for the condition when she was 15 years old. [The claimant was 32 years old at the time of her testimony]. She has good days and bad days. Symptoms of her bipolar disorder include confusion, memory issues, and sometimes she starts crying, screaming or "freaking out." She takes medication every day. Her bipolar disorder has never interfered with her ability to work. She never experienced any of the symptoms while she was working. She noted she has to write herself notes because her memory issues have gotten worse.
She started suffering from migraine headaches when she was 18 years old. She was taking medication for her migraines until the insurance stopped it. She gets maybe one or two migraines a month. Symptoms she experiences with her migraines include blurred vision, nausea, vomiting, spots in her eyes, and sensitivity to light. Her migraines have never interfered with her ability to work. She has had to call in sick due to her migraines maybe once or twice, at times when she could not handle the vomiting or other symptoms. Other than the one or two times she missed from work, her migraines did not really affect her work.
When she was 18 years old she became addicted to Lortabs that she was prescribed for her headaches. She had also been addicted to methamphetamines since she was 15 years old. However, in May 2005 she became clean. When she was taking the drugs she experienced sleep deprivation, chills, vomiting, muscle aches and diarrhea. When she was addicted to drugs she was married and did not have to work. However, when she returned to work, the drug addiction did not affect her ability to work. She never lost any jobs because of her addictions.
In a decision filed on May 1, 2012, and amended on May 7, 2012, the WCLJ made awards for the period from December 8, 2010, to April 26, 2012, classified the claimant with a marked permanent disability pursuant to a stipulation of the parties, continued payments at the permanent partial rate, and found the claim was subject to the provisions of WCL § 15(8)(d). Citing the decision in Matter of Capital District DDSO, 2012 NY Wrk Comp 50304202, the WCLJ found that the claimant's bipolar disorder was likely to be a hindrance to the claimant's employability.
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]).
In the instant case, the carrier submitted a form C-250 listing prior permanent impairments which included bipolar disorder, migraines, and "meth" addiction. In support of its application for WCL § 15(8)(d) relief, the carrier submitted a report from its consultant, as well as the testimony of the claimant.
The carrier's consultant opined that the claimant's pre-existing impairments made her current disability materially and substantially greater. However, the consultant failed to provide any explanation to support his conclusory opinion, and the one medical report it appears he relied on concerning the claimant's prior conditions (June 26, 2006- report) is not in the Board's electronic claims file.
The carrier's consultant did not offer an opinion as to whether the claimant's pre-existing conditions were a hindrance to her employment. The carrier has not cited any medical records that support that the claimant's pre-existing conditions were a hindrance to her employment. The claimant testified that none of her prior conditions interfered with her ability to work, that she never lost any jobs as a result of the conditions, and that she had only lost minimal time from work as a result of the conditions.
Therefore, the record does not support that the claimant's bipolar disorder, migraine headaches and/or drug abuse were a hindrance to her employment.
The holding of the Board Panel in Matter of Capital District DDSO, 2012 NY Wrk Comp 50304202, does not mandate a different result herein. Although that case also involved a pre-existing diagnosis of bipolar disorder, the carrier therein submitted medical evidence in the form of testimony from the claimant's treating physician that the claimant's bipolar disorder was a hindrance to her employability. Similar medical evidence, or for that matter any probative evidence at all on this issue, is lacking in this case.
Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the carrier failed to meet its burden of showing that WCL § 15(8)(d) applies in this claim.
ACCORDINGLY, the WCLJ decision filed on May 1, 2012, and amended on May 7, 2012, is MODIFIED to find that the carrier is not entitled to reimbursement from the Special Funds pursuant to WCL § 15(8)(d). No further action is planned by the Board at this time.