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Case # G1200167
Date of Accident: 03/10/2014
District Office: NYC
Employer: Mount Kisco Medical Group
Carrier: Charter Oak Fire Ins Co
Carrier ID No.: W054001
Carrier Case No.: EYM9355
Date of Filing of Decision: 12/02/2016
Claimant's Attorney: Hoffman, Wachtell & Rao, LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on November 15, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on June 23, 2016.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether the record supports the finding of a compensable psychiatric injury due to work-related stress under the Workers' Compensation Law (WCL); and,
  2. whether the Worker's Compensation law Judge (WCLJ) should have continued awards.

The WCLJ established the claim for anxiety, adjustment disorder, and major depression, made awards from May 9, 2014, to March 16, 2015, at the rate of $803.21 per week, and from March 16, 2015, to July 14, 2015, and continuing at the rate of $366.67 per week.

The Board Panel majority affirmed the WCLJ decision.

The dissenting Board Panel member only dissented from that portion of the majority decision that directed the carrier to continue payments. The dissenting Board Panel member argued that there should be no continuing awards made because there was no current medical evidence to support ongoing awards.

The carrier filed an application for Mandatory Full Board Review on July 11, 2016, arguing that the claim should be disallowed in its entirety because the testimony of the employer's witnesses supports a finding that the claimant was not exposed to a hostile work environment that caused her psychiatric injuries. In the alternative, the carrier argues that the dissenting opinion was correct in stating that the WCLJ should not have continued awards when there was no current medical evidence to support ongoing awards.

In a rebuttal filed August 8, 2016, the claimant argues that the opinion of the Board Panel majority should be affirmed. The claimant argues that the carrier did not properly preserve the issue of the claimant's entitlement to ongoing awards based on lack of medical evidence in their October 23, 2015, application for administrative review.

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

FACTS

In an EC-3 form (Employee Claim) filed on September 8, 2014, the claimant, a specialty registered nurse in an endoscopy suite, asserted a claim for anxiety, stress, and depression as well as a consequential right shoulder injury due to working in a room daily where constant vulgar language was used, sexual references were made, and she was mocked for a hearing disability.

Dr. Conciatori, a psychiatrist, was deposed on April 27, 2015, and testified that he performed an independent medical examination (IME) of the claimant on March 16, 2015, on behalf of the carrier. Dr. Conciatori opined that the claimant had an adjustment disorder with a mixed disturbance of mood, meaning depression and anxiety symptoms, based on her history and level of symptoms. The doctor found that the claimant's condition was causally related to her work. The claimant was feeling better after six months of treatment. Dr. Conciatori opined that the claimant had a partial mild disability, but she could not return to work for her former employer and work with the same doctors and nurses, but could do other work due to her intact cognition and her intelligence. He did not believe claimant had posttraumatic stress disorder (PTSD) because it requires an actual serious physical injury or threat of one and that did not occur in this matter. Dr. Conciatori opined that he would continue the claimant's current treatment.

Dr. Mangiafico, the claimant's treating physician, was deposed on April 29, 2015, and testified that he had been providing the claimant with routine medical care since April 20, 2001. He examined the claimant on March 10, 2014, and she reported increased work-related stressors due to her decreased ability to hear in the gastrointestinal suite, foul language was being used in the gastrointestinal suite that made her uncomfortable, and she was being made fun of because of her hearing loss. The claimant was tearful and sad at the examination and he prescribed Lexapro for depressive symptoms and Ativan to help the claimant sleep at night. He advised the claimant to go to Human Resources to discuss what was occurring at work. The doctor opined that the claimant had sensory neural hearing loss, depression, anxiety and insomnia. He next saw the claimant on March 27, 2014, and she reported meeting with Human Resources and that some changes had been made at her place of employment. The doctor testified that he continued the claimant on her medications. He next saw the claimant on April 10, 2014, because she was having palpitations and increasing anxiety due to her work situation and in response he removed her from work. He next saw the claimant on May 8, 2014, and she had returned to work and reported a recurrence and worsening of her anxiety due to her stressful work environment. The doctor opined that the claimant had anxiety with adjustment reaction and that she would benefit from seeing a psychologist or psychiatrist. The claimant stopped working, but she would be able to work elsewhere.

Dr. Empfield, the claimant's treating Board certified psychiatrist, was deposed on May 8, 2015, and testified that she first started treating the claimant in October of 2014. The claimant reported being withdrawn, depressed, crying, feeling worthless, and feeling that her career was over due to her interactions with the physicians and other nurses at her former employer. The claimant provided a history of two physicians using foul langue and making inappropriate remarks about patients. When she had to work with them she could not sleep the night before, she began to have panic attacks, anxiety, and she had a feeling of helplessness concerning the protection of the patients. The claimant reported that after the behavior was reported, it initially stopped, but her fellow nurses started to question her competency, and her primary care physician removed her from work because her blood pressure was too elevated and he was concerned that she would have another heart attack. Dr. Empfield diagnosed the claimant on October 3, 2014, with PTSD and opined that she was 100% disabled. The doctor opined that the claimant remained 100% disabled from all work because she was still very incapacitated by the events that occurred. She last examined the claimant on March 25, 2015, and she remained 100% disabled.

The claimant's supervisor, the employer's patient care manager, testified at a hearing held on May 19, 2015, that she had been on leave from the end of January 2014 to April 9, 2014, and only became aware of the claimant's situation after having a conversation with the claimant upon her return. The witness testified that none of the other nurses in the unit complained about the work environment or the doctors' behavior. In April of 2014, the claimant had made some mistakes that were brought to her attention. The claimant felt that she was being retaliated against for reporting the doctors' behavior. Another employee had made a complaint about the use of foul language.

The employer's endoscopy unit charge nurse testified at a hearing on May 19, 2015, that she performed many of the same duties and worked with the same doctors as the claimant. She had witnessed unprofessional behavior by the doctors, but that it was no different from any job that she had in the past. The claimant had work performance issues prior to leaving the employer and she had put a patient's medical report under an incorrect name. She informed the patient care manager about the mistake, as she was obligated to tell the patient care manager when a nurse made such a mistake, and she had not reported the mistake as retaliation. She had been aware that the claimant had filed a complaint against the doctors in the unit. Another employee had also complained about the doctors. She did not witness the claimant being ridiculed about her hearing loss. Claimant's demeanor was drastically different in the last few months that she worked for the employer.

The claimant testified at a hearing held on May 19, 2015, that in May of 2014, she had been working as a registered nurse in the endoscopy suite of the employer and she had worked there for two years. Her job duties would rotate and included assisting with colonoscopies and upper endoscopies, running the recovery unit, and running admissions. She stopped working in May because of a hostile work environment. The doctors used vulgarities in the procedure rooms and made inappropriate comments about the patients. She reported the doctors' unprofessional conduct to her supervisor's supervisor, and three of her fellow nurses retaliated against her for reporting the doctors. After she reported the doctors, they started mocking her hearing loss. The claimant testified that during February, March, and April of 2014, she couldn't sleep, couldn't eat, couldn't concentrate, had memory loss, had hair loss, she was shaking and perspiring at work, and she did not want to do anything. She told her primary doctor, Dr. Mangiafico, about her work situation in March of 2014. Her first year performance report was excellent. On or about May 9, 2014, she went out on medical leave for anxiety and depression.

The claimant, who had moved to Montana in April of 2015, testified by telephone at the hearing held on July 14, 2015, that she had not tried to work since she left her former employer in May of 2014. She last saw Dr. Empfield in person in May of 2015 and she spoke to the doctor by telephone on July 9, 2015. Dr. Empfield recommended that she see her every three months or as needed. She had been seeing a clinical social worker on a weekly basis. She had not yet started seeing a psychiatrist or clinical social worker in Montana.

A nurse in the endoscopy suite testified that she had a professional relationship with the claimant and that they worked together "pretty well." She was aware that the claimant had made a complaint about the doctors using vulgar language. She did not treat the claimant differently because of the complaint, but it was her experience that the doctors did not act inappropriately. She did not work in the same procedure room with the claimant, as there was one registered nurse per procedure room. The claimant's attitude changed and she became distracted and unpleasant around December of 2013.

In a reserved decision filed October 8, 2015, the WCLJ established the case for anxiety, adjustment disorder, and major depression, issued awards for the period May 9, 2014, to March 16, 2015, at the rate of $803.21 per week, for the period March 16, 2015, to July 14, 2015, at the rate of $366.67 per week, and continuing, and granted $400.00 deposition fees to Dr. Mangiafico and Dr. Empfield.

The carrier requested administrative review arguing that the WCLJ's decision should be reversed and the claim disallowed. In the alternative, the carrier argues that the claimant voluntarily removed herself from the labor market and is not entitled to awards.

In rebuttal, the claimant argued that the WCLJ should be affirmed in all respects.

LEGAL ANALYSIS

Psychiatric Injury

A mental injury caused solely by psychic trauma is compensable as a matter of law when the circumstances constitute an accident within the meaning of the Workers' Compensation Law (Matter of Haydel v Sears, Roebuck & Co., 106 AD2d 759 [1984]). A mental injury need not be caused by a discrete identifiable psychic trauma, but can result from emotional stress extending over a period of months (Matter of Velazquez v Triborough Bridge & Tunnel Auth., 156 AD2d 922 [1989]). Not all mental injuries suffered on the job are compensable, and in order for a claim to be viable, the stress must be greater than that which occurs in the normal work environment (Matter of Troy v Prudential Ins. Co., 233 AD2d 635 [1996]). "This inquiry . . . presents a factual issue for the Board to resolve and its determination, if supported by substantial evidence in the record as a whole, will not be disturbed" (Matter of Kopec v Dormitory Auth. of State of N.Y., 44 AD3d 1230 [2007] [citation omitted]).

"[A] mental injury precipitated solely by psychic trauma may be compensable in workers' compensation" (Matter of Guess v Finger Lakes Ambulance, 28 AD3d 996 [2006], lv denied 7 NY3d 707 [2006] [citations omitted]). "[A] claim for work-related stress cannot be sustained absent a showing that the stress experienced by the affected claimant was greater than that which other similarly situated workers experienced in the normal work environment" (Matter of Spencer v Time Warner Cable, 278 AD2d 622 [2000], lv denied 96 NY2d 706 [2001] [citations omitted]).

In this matter, the credible testimony of the claimant and the overall record supports a finding that the incidents involving the claimant and her co-workers were not commonplace and the stress experienced by the claimant was greater than that which other similarly situated workers experienced in the normal work environment. The claimant credibly testified as to the events that led to her anxiety, stress and depression, including the doctors' use of vulgarities in the procedure rooms, inappropriate comments made about patients by the doctors, the mocking of her hearing loss following her reporting of the doctors' unprofessional conduct, and retaliation by three of her fellow nurses for reporting the doctors. The Board has previously determined that, "[b]ullying, harassment, and mean-spirited actions and remarks should not be part of any normal workplace experience" (Matter of New York State Dept. of Corrections, 2013 NY Wrk Comp. 0292944).

The carrier's witnesses, the claimant's supervisor and the charge nurse, both corroborated that another employee had complained about the doctors' use of profanity. The charge nurse also corroborated that she had witnessed unprofessional behavior by the doctors in the endoscopy suite, but attempted to qualify her statement by stating that it was no different from any of her previous jobs. Dr. Conciatori, Dr. Mangiafico, and Dr. Empfield all find that claimant sustained psychological injuries that were causally related to her employment.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant encountered a degree of stress that was greater than that which other similarly situated workers experience in the normal work environment and, thus, her psychological injury claim is compensable.

Continued Awards

When a claimant's disability has not been classified as permanent, there is no presumption or inference of a continuing disability, and the claimant's attending physicians have the burden of submitting up-to-date medical evidence that the disability is continuing (see 12 NYCRR 325-1.3[b][3]; Matter of Virtuoso v Glen Campbell Chevrolet, Inc., 66 AD3d 1141 [2009]). Pursuant to 12 NYCRR 325-1.3(b)(3), the claimant's attending physician is required to submit progress reports of ongoing medically necessary treatment and "the intervals between [those] follow-up visits shall be no more than 90 days" (see Matter of Mercio v Globe Protection, Inc., 74 AD2d 682 [1980]; Matter of Schneider v Buffalo Crushed Stone Co., 43 AD2d 780 [1973]).

Here, there is no current medical evidence to support ongoing awards to the claimant. A review of the record in this case indicates that when the WCLJ's reserved decision was filed on October 8, 2015, the most recent medical evidence by the claimant's treating physicians finding a causally related degree of disability was for treatment rendered by Dr. Mangiafico on November 3, 2014, and by Dr. Empfield on November 5, 2014. The carrier's consultant filed a medical report dated March 18, 2015, that indicated that the claimant had a causally related partial, mild, psychiatric disability. Therefore, there was no medical evidence in the record to support the WCLJ's issuance of awards after June 16, 2015 (i.e. 90 days after March 18, 2015).

Therefore, the Full Board finds, upon review of the record and based upon the preponderance of the evidence, that there were no up-to-date medical reports filed with the Board as of October 8, 2015, the reserved decision date, and the claimant in not entitled to continuing awards subsequent to June 16, 2015.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed October 8, 2015, is MODIFIED to find that the claimant is not entitled to continuing awards subsequent to June 16, 2015. The decision, as modified, is otherwise affirmed. No further action is planned by the Board at this time.