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Case # G0743882
Date of Accident: 10/18/2013
District Office: NYC
Employer: Wightman Lumber & Building
Carrier: NY Lumbermens Ins Trust Fund
Carrier ID No.: W551006
Carrier Case No.: NYL2013015465
Date of Filing of Decision: 12/02/2016
Claimant's Attorney: Walter L. Terry III
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 March 11, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether claimant had causally related lost time from work from December 9, 2014, forward.

The Workers' Compensation Law Judge (WCLJ) made awards from December 9, 2014, to December 31, 2014, and continuing at the tentative partial rate of $224.52 per week.

The Board Panel majority modified the WCLJ's decision and rescinded awards from December 9, 2014, forward.

The dissenting Board Panel member would find that the claimant's workplace injury contributed to his inability to work and would direct compensation benefits payable from December 17, 2013, forward.

The claimant filed an application for Mandatory Full Board Review on April 6, 2016.

The Group Self Insured Trust (GSIT) filed a rebuttal on May 6, 2016.

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

FACTS

Claimant, a fork truck driver/laborer, filed a C-3 (Employee Claim) on November 1, 2013, alleging that on October 18, 2013, he injured his left forearm at work. This claim (WCB # G0743882) was established for the left wrist.

Claimant filed another C-3 on September 9, 2014, advising that some time in December 2013, he may have injured his left shoulder and forearm shoveling snow at work. Based on this second C-3, WCB # G0747016 was indexed by the Board. The GSIT controverted the claim.

Claimant began treating with Dr. Sternberg, an orthopedist, on November 1, 2013. In his initial report, Dr. Sternberg found claimant to be temporarily totally disabled, but that he could return to fulltime, normal duty work as of November 4, 2013.

In a January 8, 2014, report, Dr. Sternberg noted that the claimant had been experiencing left shoulder pain down to his left forearm. The claimant associated the onset of the complaints with an episode of shoveling snow at work two and a half weeks prior, as well as to the work accident of October 18, 2013. The doctor felt this was a new accident, and assessed the claimant with a 25% impairment. Dr. Sternberg indicated that the claimant was likely to have a good recovery of his acute complaints, but indicated that the claimant has a risk of re-injury. He felt that the claimant would be able to return to work as of January 13, 2014.

In an administrative decision filed on January 24, 2014, the claim was established for a left wrist injury, the average weekly wage was set as $505.17, and awards were directed for the period from October 24, 2013, through November 4, 2013, at the total disability rate.

In a March 5, 2014, report, claimant's treating family practice physician, Dr. Fox, noted the claimant's continuing pain complaints; assessed left wrist, shoulder, and brachial plexus injuries; indicated that the claimant was totally disabled; and referred the claimant to a neurologist. The claimant then underwent an EMG/NCV study, and was found to have left carpal tunnel syndrome and chronic denervation in his cervical spine.

In an April 4, 2014, report, Dr. Fox indicated that the claimant's left arm complaints might relate to a cervical spine condition, and suggested that the claimant undergo a cervical MRI. Dr. Fox continued to find claimant totally disabled. The claimant's cervical MRI, performed on April 28, 2014, revealed numerous positive findings, including multi-level stenosis.

The claimant was examined by Dr. Sethi, a neurosurgeon, on June 25, 2014. In his report, Dr. Sethi noted the claimant's cervical and left arm complaints, and suggested that the claimant might be a surgical candidate. The doctor assessed the claimant with a 50% causally related disability.

In a decision filed on September 12, 2014, the claimant was awarded benefits at the tentative moderate partial disability rate of $168.39 per week for the period from January 8, 2014, through April 3, 2014, payable without prejudice to a disability benefits lien, as the GSIT had alleged that claimant had received disability benefits.

The disability benefits carrier for the employer filed a request for reimbursement on September 17, 2014, indicating that it had paid claimant disability benefits totaling $4,420.00 during the period from January 15, 2014, to June 26, 2014.

At an October 14, 2014, hearing, the claimant testified that he had worked for the employer for seven years. On October 18, 2013, he injured his left arm trying to separate steel that weighed more than he does. The claimant experienced pain in his left arm, and on the left side of his body. The claimant went out of work and sought medical attention. He stayed out of work until November or December. He then returned to work and re-injured himself shoveling snow.

During cross-examination, the claimant explained that he has a pre-existing injury to his left forearm from a wrestling accident when he was a teenager. To the best of his recollection, after Dr. Sternberg released him to return to work in November 2013, he returned to work for one day. The claimant agreed that he may have filled out an application for disability benefits in connection with these accidents, but explained that he was assisted by the employer, and that he likely did not understand the application materials. During re-direct testimony, the claimant explained that his formal education only extended through sixth grade. Thereafter, he was able to get a GED.

The employer's safety coordinator testified on October 14, 2014, that when the claimant first went out of work on October 18, 2013, he told the employer that it was due to left arm pain that he had been experiencing for six months, and that it was not the result of a work injury. The claimant went out of work until November 4, 2013, and then returned to work until December 16, 2013. On November 4, 2013, the claimant advised that Dr. Sternberg had fixed his wrist, and that he was now pain free and ready to return to work. On December 16, 2013, the witness brought the claimant to a doctor who took him out of work due to numerous health problems. The claimant then went out of work on disability. The claimant was not clear with the safety coordinator as to what had caused his continuing complaints. As such, in an effort to better understand the situation, the witness met with a safety officer. The safety officer described inconsistencies in the claimant's reports of what had occurred. Ultimately, the claimant claimed he had been hurt at work. The employer only became aware of the claimant's claim that he had injured himself shoveling at work after receiving medical information containing that history. The witness confirmed that she assisted the claimant in completing his initial C-3 form, and that she filled out his disability benefits form on his behalf.

During cross-examination, the safety coordinator testified that she did not know the claimant's formal education level, but agreed that he had several questions about paperwork, and generally needed assistance with his documents. She had accompanied the claimant to his medical appointments because he had difficulty communicating, and was anxious about establishing medical care for himself.

By a decision filed November 24, 2014, the WCLJ found prima facie medical evidence for the left shoulder, the GSIT was directed to produce a report from an independent medical examiner (IME) regarding causal relationship, awards from April 3, 2014, to November 19, 2014, were held in abeyance and the case was continued.

On December 9, 2014, the claimant was examined by Dr. Ferraraccio at the GSIT's request. The doctor generated two separate IME reports based upon his examination. In his reports, Dr. Ferraraccio found that the claimant sustained a possible strain to the flexor muscles of his left forearm due to the work accident of October 18, 2013, but that he did not have any residual causally related disability from his forearm. There was no evidence of a left shoulder injury. The accident of October 18, 2013, also likely caused a traction injury to the claimant's left arm that had aggravated underlying degenerative conditions in his cervical spine. The claimant had a moderate to marked causally related disability due to his cervical complaints.

On December 17, 2014, Dr. Fox testified that he began treating the claimant in March of 2014, and had assessed him with a total disability due to his causally related complaints. The doctor explained that he had felt the claimant was credible, and that his complaints were significant enough to warrant referral to specialists.

Claimant's testimony was again taken at a hearing on December 30, 2014. The claimant testified that in mid-December of 2013, he spent a good portion of the day shoveling snow at work, and the next morning awoke in pain. At work that next day, he was attempting to drive his forklift with one arm, favoring his injured left side, at which time his boss grew concerned, questioned him, and sent him to the safety officer so that he could seek medical attention. He has not worked since.

During cross-examination, the claimant agreed that he may have worked some of the days between October 24, 2013, and December 19, 2013, but could not recall how many. He used up his sick and vacation time during that period. The pain that he experienced in his arm the day after shoveling was the same as the pain he had experienced while lifting steel at work on October 18, 2013. The claimant denied receiving treatment for any other medical conditions at that time. Although he has a pre-existing injury to his left forearm, that is not the site of his present left arm complaints. The claimant agreed that he may have been released to return to work in January of 2014, but he was uncertain.

The employer's safety coordinator testified again on December 30, 2014. She stated that in January of 2014, the claimant presented with a letter from Dr. Sternberg releasing him to return to work. The employer was concerned about permitting the claimant to return to work based upon the letter, because Dr. Sternberg had only referenced the claimant's affected left arm, and had not referenced the other medical issues the claimant had that the employer believed may have also impacted his ability to work. As such, the claimant was at work for three hours in the office, but did not perform his job duties, and has not been back to work since.

At the conclusion of the December 30, 2014, hearing, the WCLJ amended the claim to include aggravation of a pre-existing neck condition causally related to the October 18, 2013, work accident. The WCLJ also found that since the claimant's complaints have been determined to stem from his cervical spine, and not from a shoulder injury, WCB # G0747016 was a duplicate which the WCLJ cancelled and combined with WCB # G0748882. The WCLJ held awards for the period from April 3, 2013, to December 9, 2014, in abeyance, stating that "[t]here may still be some required testimony on that issue" (transcript, 12/30/14 hearing, p. 35). The WCLJ noted that the according to claimant's testimony,

he was taken out of work, he went back to work, apparently there was some information that the employer had that he wasn't ready to go back to work, and he wasn't allowed to work at least according to his testimony. That is a little bit unclear and I'm not making any decisions relative to that.

(Id. at p. 37).

The WCLJ then awarded benefits for the period from December 9, 2014, to December 31, 2014, and continuing, at the partial disability rate of $224.52 per week. The awards and findings made at the December 30, 2014, hearing are reflected in decisions filed on January 5, 2015.

In its application for administrative review, the GSIT argued that prior to any awards having been directed, and prior to the cancellation of WCB # G0747016, and combination of the two claims, it should have been permitted further development of the record to address the conflicting histories that the claimant has provided as to how his injuries occurred. The GSIT attached a December 19, 2013, medical report from a nurse practitioner, Katherine Santoro, indicating that the claimant was seen for left arm pain, but indicated that he felt he could continue working. The report indicates that the nurse practitioner referred claimant to an orthopedist and a pain management physician, recommended that he seek assistance for alcohol abuse, and gave him a note advising him to stay out of work.

In rebuttal, the claimant pointed out that the GSIT's own IME agreed that the claimant's conditions were causally related to his accidents, and assessed the claimant with a continuing causally related disability. As such, the claimant asked that the WCLJ decisions be affirmed.

The claimant underwent cervical discectomy and fusion surgery on November 19, 2015.

LEGAL ANALYSIS

"It [i]s claimant's burden to establish a causal relationship between his employment and his disability by competent medical evidence (see Matter of Sale v Helmsley-Spear, Inc., 6 AD3d 999 [2004]; Matter of Keeley v Jamestown City School Dist., 295 AD2d 876 [2002])." (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 [2008]).

In evaluating the medical evidence presented, the Board is not bound to accept the testimony or reports of any one expert, either in whole or in part, but is free to choose those it credits and reject those it does not credit (see Matter of Morrell v Onondaga County, 238 AD2d 805 [1997], lv denied 90 NY2d 808 [1997]; Matter of Wood v Leaseway Transp. Corp., 195 AD2d 622 [1993]). Thus, questions of credibility, reasonableness, and relative weight to be accorded to conflicting evidence are questions of fact that come within the exclusive province of the Board (see Matter of Berkley v Irving Trust Co.., 15 AD3d 750 [2005]).

Here, the claimant has produced credible medical evidence showing that he was out of work from after his October 18, 2013, accident, until November 4, 2013. The records also demonstrate that the claimant subsequently became disabled as the result of similar complaints after aggravating his injury in December of 2013. In an administrative decision filed on January 24, 2014, awards were directed for the period from October 24, 2013, through November 4, 2013, at the total disability rate. In a decision filed on September 12, 2014, the claimant was awarded benefits at the tentative partial disability rate of $168.39 per week from January 8, 2014, through April 3, 2014, payable without prejudice to a disability benefits lien.

The Full Board finds that the record contains medical evidence of a continuing causally related disability stemming from claimant's left arm and neck conditions from April 3, 2014, until the December 30, 2014, hearing, with the GSIT's IME conceding that the claimant has a causally related cervical condition and causally related disability as of December 9, 2014. There is no evidence that claimant's lost time from work from April 3, 2014, forward was due to anything other than his causally related disability.

Although the claimant has only requested that the January 5, 2015, decision be reinstated, and has not presently sought benefits from April 3, 2014, to December 9, 2014, the Full Board nonetheless finds, based the preponderance of the evidence in the record, that claimant is entitled to awards from April 3, 2014, to December 31, 2014, and continuing, at the partial disability rate of $224.52 per week, and that benefits for the period from April 3, 2014, to June 26, 2014, be subject to the disability benefits carrier's lien.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on January 5, 2015, is MODIFIED to award benefits to claimant from April 3, 2014, to December 9, 2014, at the partial disability rate of $224.52 per week, subject to the disability benefits carrier's lien. In all other respects that decision is affirmed and remains in effect. No further action is planned by the Board at this time.