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Case # G1150714
Date of Accident: 07/15/2013
District Office: Syracuse
Employer: Cellectric Electrical LLC
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 67804021
Date of Filing of Decision: 01/25/2017
Claimant's Attorney: Oot & Associates
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on December 20, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on May 26, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the date of disablement should be modified and Cellectric Electrical LLC (Cellectric) released from liability.

The Workers' Compensation Law Judge (WCLJ) established the claim for an occupational disease involving both shoulders and the left hip and set a date of disablement of July 15, 2013.

The Board Panel majority affirmed the WCLJ's decision.

The dissenting Board Panel member would find the proper date of disablement to be February 12, 2014.

The carrier filed an application for Mandatory Full Board Review on June 23, 2016, arguing that the dissenting opinion should be adopted by the Full Board or, in the alternative, the date of disablement should be set as March 16, 2015, the date when the claimant's attending physician opined that there was a causal relationship.

The claimant filed a rebuttal on July 25, 2016, contending that the Board Panel majority decision should be affirmed in its entirety.

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

FACTS

This matter involves a controverted claim for bilateral shoulders and left hip. In a medical report, dated July 15, 2013, concerning the MRI of the claimant's left shoulder, Dr. Reznikov opined that the claimant had tendinitis and inflammation surrounding the rotator cuff anteriorly and surrounding the ligaments anteriorly.

In an EC-3 form (Employee Claim) filed on March 15, 2015, the claimant indicated that the date of injury was July 1, 2013, the injury did not happen at one particular job site, and was due to repetitious arm movement overhead and climbing step ladders while doing general electrical work. The claimant indicated that his date of first treatment was July 15, 2013.

In a medical report dated February 25, 2013, Dr. Bonavita, the claimant's treating physician, treated the claimant's bilateral shoulder pain with cortisone injections. A review of the record indicates that the claimant was treated three times with bilateral shoulder injections of cortisone.

The record indicates that the claimant was laid off permanently on November 12, 2013, due to a lack of work.

In a medical report filed by Dr. Bonavita, dated February 12, 2014, the doctor noted that the claimant stated that his bilateral shoulder pain was due to being an electrician and working for years.

In an EC-4NARR (Doctor's Narrative Report) concerning a March 16, 2015, examination, Dr. Smart reported that the claimant complained of chronic shoulder pain tied to a work injury dated July 1, 2013, and repetitive work through the years. The claimant reported getting at least three cortisone injections in both shoulders that helped intermittently and physical therapy that made the shoulders worse. The doctor opined, following a physical exam of both shoulders and a review of the MRIs of both shoulders, that the claimant had a "bilateral shoulder rotator cuff tear, left greater than right, with the left side being a complete tear with some retraction." The doctor found a causal relationship between the claimant's shoulder condition and his work.

At a hearing held on August 25, 2015, the claimant testified that he worked for Cellectric from January 1, 2011, through July of 2013, performing service, repair, and installation of cell towers. He used a 50-pound jackhammer as part of his job at least once a week and sometimes he would use it all day. Before he worked for Cellectric, he worked for COR Development, a development company, and his job was to oversee all their electrical needs and repairs. Prior to working for COR Development, he was self-employed, and he was currently self-employed. He did not use a jackhammer while he was employed by COR Development or when he was self-employed.

At the conclusion of the hearing on August 25, 2015, the WCLJ established the claim as an occupational disease for both shoulders and the left hip, set the date of disablement as July 15, 2013 (MRI date), found that Cellectric Electrical LLC, was the proper employer, and found that the claimant had no compensable lost time. Those findings are memorialized in a decision filed on August 28, 2015.

In its application for administrative review of the notice of decision filed on September 21, 2015, the carrier argued that the date of disablement should be set as March 16, 2015, the date of the first medical evidence indicating that the claimant's condition was work related, and that Cellectric Electrical LLC was not the employer of record.

The claimant did not file a timely rebuttal.

LEGAL ANALYSIS

Pursuant to Workers' Compensation Law (WCL) §§ 28 and 42, the Board has some latitude in determining the date of disablement in an occupational disease claim (Matter of Bonneau v New York City Dept. of Sanitation, 233 AD2d 796 [1996]; Matter of Hastings v Fairport Cent. School Dist., 274 AD2d 660 [2000], lv dismissed 95 NY2d 926 [2000]). "In making this determination, the Board is not bound to select the earliest possible date of disablement nor is it required to give preference to certain events over others" (Matter of Bishop v St. Joe Minerals, 151 AD2d 917 [1989], lv denied 75 NY2d 709 [1990]).

The Board has been affirmed when it has selected as the date of disablement the date of first medical treatment (Matter of Fredenburg v Emerson Power Transmission, 2 AD3d 1129 [2003]), the date that a physician "definitively concluded" that a condition was work related (see Hastings, 274 AD2d 660 [2000]), the date of claimant's first causally related lost time (see Matter of Glasheen v New York State Dept. of State, 239 AD2d 792 [1997]), and the date claimant permanently ceased working for the employer, even though he had previously had causally related lost time (see Matter of Cummings v Tenneco Chems. Div., Am. Plastics, 53 AD2d 944 [1976]). According to the Appellate Division, it is within "the power of the Board to fix any date of disablement supported by the evidence where the spirit and purpose of the occupational disease provisions of the Workmen's Compensation Law would thereby be furthered" (id.).

The Board has considerable discretion in setting the date of disablement (see WCL § 42 and, e.g Matter of Phillips v Cornell Univ., 290 AD2d 860 [2002]). The Board is not bound to select the earliest date possible, nor is it required to give preference to certain events over others (see Matter of Bishop v St. Joe Minerals, 151 AD2d 917 [1990], lv denied 75 NY2d 709 [1989]). Among the accepted dates of disablement are the first date of causally related treatment, the date on which the claimant first received a diagnosis indicating that the condition was work related, the date on which the claimant began to lose time from work due to the work-related disability, the date on which the claimant was advised by a physician to stop working due to the work-related disability, and the date on which the claimant actually stopped working because of that disability (see e.g. Matter of Graniero v Northern Westchester Hosp., 265 AD2d 638 [1999], lv denied 94 NY2d 759 [2000]; Matter of Glasheen v New York State Dept. of State, 239 AD2d 792 [1997]; Matter of Cummings v Tenneco Chems. Div., Am Plastics, 53 AD2d 944 [1976]; Matter of Ryciak v Eastern Precision Resistor, 12 NY2d 29 [1962]; Matter of Zambrona v Renell Bake Shop, Inc., 34 AD2d 707 [1970]).

Here, the Full Board finds that the preponderance of the evidence in the record supports a date of disablement of February 25, 2013, the date of the claimant's first bilateral shoulder cortisone treatment, as the Board "may fix as the 'date of disablement' for a sufferer of an occupational disease the date when he first received medical treatment and thus impose liability on the carrier on the risk as of that date" (Matter of Guide v Elm Coated Fabrics Division of W.R. Grace Co., 79 AD2d 786 [1980]). In this matter the claimant did not need treatment for his occupational disease until February 25, 2013. According to the Appellate Division, it is within "the power of the Board to fix any date of disablement supported by the evidence where the spirit and purpose of the occupational disease provisions of the Workmen's Compensation Law would thereby be furthered" (Matter of Cummings v Tenneco Chems. Div., Am. Plastics, 53 AD2d 944 [1976]).

Pursuant to WCL § 28, the right to claim compensation for an occupational disease is not time barred if the claim is filed no more than two years after the date of disablement and after the claimant knew or should have known that the disease is or was caused by their employment (Matter of Patterson v Long Is. Jewish Med. Ctr., 296 AD2d 774 [2002]). Therefore, to determine the applicability of WCL § 28 to an occupational disease claim, three pieces of information generally are necessary: (1) the date of disablement, (2) the date on which the claimant knew or should have known that the condition was related to employment, and (3) the date on which the claim was filed. If a claim is not filed within two years of the date of disablement, then the time to file the claim can be extended if the claimant did not know that his disability was causally related to his employment, to two years after the claimant has or is imputed with such knowledge.

In this matter, the date that the claimant knew or should have known that his condition was work related was February 12, 2014, the date that the claimant related his suspected causal relationship to Dr. Bonavita. Inasmuch as the claimant filed his C-3 form on March 15, 2015, the claimant's occupational disease claim is not time-barred because it was filed within two years of when he knew or should have known the condition was work related.

In occupational disease cases governed by WCL § 44, "an employee may recover benefits from the entity that last employed him or her in the field that ultimately caused the disabling condition. [The Workers' Compensation Law] also provides that '[t]he disablement of an employee resulting from an occupational disease . . . shall be treated as the happening of an accident within the meaning of this chapter' (Workers' Compensation Law § 38) . . . '[T]he carrier on the risk on the date of disablement where occupational disease is found . . . is responsible for payment of the award'" (Matter of Mlodozeniec v Trio Asbestos Removal Corp., 66 AD3d 1174 [2009], citing Matter of Nathan v Presbyterian Hosp. in City of N.Y., 66 AD2d 933 [1978], lv denied 46 NY2d 712 [1979] [additional citations omitted]). Therefore, Cellectric Electrical LLC is the proper employer in this matter because it was the claimant's employer on the date of disablement of February 25, 2013.

Therefore, the Full Board finds, upon review of the record and based upon the preponderance of the evidence, that the record supports a date of disablement of February 25, 2013, the two-year time limitation to bring a claim did not begin to run until February 12, 2014, the claimant's occupational disease claim was timely filed, and Cellectric Electrical LLC was the proper employer in this matter.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed August 28, 2015, is MODIFIED, to find a date of disablement to be February 25, 2013, and the date that the claimant knew or should have known that his condition was work related was February 12, 2014. Therefore, this occupational disease claim is not time-barred. The WCLJ decision filed August 28, 2015, is in all other respects affirmed. No further action is planned by the Board at this time.