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Case # 59915169
Date of Accident: 08/17/1999
District Office: Albany
Employer: Schervier Pavilion
Carrier: Special Funds Cons Comm
Carrier ID No.: W997001
Carrier Case No.: 002478004376
Date of Filing of Decision: 10/27/2016
Claimant's Attorney: Irwin Silverman Esq.
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on September 20, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed May 12, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether Special Funds Conservation Committee (Special Funds) should be permitted to develop the record regarding voluntary withdrawal and labor market attachment before any further benefits were awarded.

The Workers' Compensation Law Judge (WCLJ) denied Special Funds request to develop the record and awarded benefits from February 7, 2014, forward at the temporary total disability rate.

The Board Panel majority rescinded the WCLJ's decision without prejudice and directed further development of the record.

The dissenting Board Panel member would affirm the WCLJ decision.

The claimant filed an application for Mandatory Full Board Review on June 11, 2016.

Special Funds filed a rebuttal on July 7, 2016.

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

FACTS

On August 17, 1999, the claimant tripped and fell while working as a housecleaner, injuring her right knee. Her claim was accepted by the carrier, and she received voluntary payments of compensation during her initial period of lost time. The claimant returned to work as of October 1, 1999, but continued to have periods of intermittent lost time. On August 28, 2001, the claimant underwent authorized arthroscopic right knee surgery.

At a February 7, 2002, hearing, the claimant raised the issue of consequential left knee, and claimed compensation benefits for the period following her right knee surgery. The carrier objected to benefits after September 23, 2001, less than one month after the surgery was performed, and also objected to the inclusion of a consequential left knee injury. The parties conducted medical depositions, at which time, among other things, Dr. Bhanusali testified that he had assessed the claimant with a temporary total disability since the date of surgery due to the condition of her knee cartilage, as observed on MRI, her right knee pain, and her left knee pain (see Deposition Transcript, 4/19/02).

In a Memorandum of Board Panel Decision filed on February 13, 2003, the Board Panel modified the WCLJ's finding establishing the claim for a consequential left knee injury and found that the claimant had only suffered a temporary aggravation of her left knee with no associated causally related disability. The Board Panel then rescinded previously directed awards after December 28, 2001, and directed that benefits as of that date be reevaluated in light of the modification.

In the interim, the claimant had continued with regular treatment. In a report dated March 19, 2003, Dr. Bhanusali assessed the claimant with a 10% schedule loss of use (SLU) of her right leg. In a report dated June 11, 2003, Dr. Bhanusali reiterated his SLU opinion, and also noted that the claimant was complaining of lumbar pain. The 10% SLU was awarded in a decision filed on October 3, 2003. The WCLJ noted that disability exceeded the SLU award at that time, and thus no further payment was due to the claimant.

Thereafter, in reports generated in October and December of 2003, Dr. Bhanusali indicated that the claimant's right knee complaints had worsened, and Dr. Bhanusali made repeated requests that the carrier provide the claimant with an osteoarthritic brace. In a decision filed on February 3, 2006, the parties agreed that all prior tentative rates could be made permanent, and the case was closed.

On February 13, 2006, the claimant returned to Dr. Bhanusali for treatment for significant low back and right knee pain. Dr. Bhanusali made a request for a physical therapy authorization. On July 7, 2006, the claimant was examined by consulting physician, Dr. Wiener, at the carrier's request. Dr. Wiener concluded that the claimant suffered a mild disability from her right knee, and was more significantly disabled due to her lumbar complaints. Dr. Wiener felt that the lumbar injuries were unrelated to the claimant's compensation injury.

In a report dated May 23, 2007, Dr. Bhanusali noted that the claimant had undergone a recent right knee MRI, and that based upon his review of the results, the claimant was a candidate for additional arthroscopic right knee surgery, or a total knee replacement. He indicated that the claimant wished to have the arthroscopic procedure. On August 28, 2007, Dr. Bhanusali filed a C-27 (Medical Proof of Change in Condition in Support of Application for Reopening of Claim for Workers' Compensation, Volunteer Fire Fighters' or Volunteer Ambulance Workers' Benefits), stating that the claimant's knee condition had worsened, and that the claimant required arthroscopic surgery. In a report dated March 6, 2008, Dr. Bhanusali noted that he had requested authorization to perform the procedure.

On May 20, 2008, the claimant was examined by Dr. Berezin at the carrier's request. He assessed the claimant with a mild disability, and indicated that she would likely benefit more from a course of injections than the surgery that had been requested. The claimant then opted to try the suggested injections.

As of his report dated April 1, 2009, Dr. Bhanusali assessed the claimant with a moderate partial disability. The claimant continued in regular treatment, and Dr. Bhanusali subsequently reported mild and moderate disability levels. He also reported that the claimant had lumbar complaints. In June of 2010, he requested authorization to perform a partial knee replacement.

At a January 19, 2011, hearing, a WCLJ found prima facie medical evidence for a consequential back injury, authorized a total knee replacement procedure, and reserved the carrier's rights regarding applicability of WCL 25-a. At a July 26, 2011, hearing, the claimant testified that she has not worked since receiving her SLU award. The WCLJ then found no compensable lost time from March 19, 2003, to the date of the hearing, and found that WCL 25-a applied as of May 5, 2009. The carrier was discharged and removed from notice, and the claim became the responsibility of Special Funds. The parties could not agree as to whether the claim should be amended to include a consequential back injury, and thus depositions were directed (see EC-23, 7/29/11). Neither party sought review of the findings made at the January 19, 2011, hearing.

At an August 31, 2011, hearing, the claimant testified regarding her claim for consequential back injury. During cross-examination, she confirmed that she never returned to work after her initial right knee arthroscopy. After considering the testimony and the medical depositions, the WCLJ issued a reserved decision on January 31, 2012, amending the claim to include the consequential back injury.

The claimant continued in regular treatment for her right knee, and ultimately underwent total knee replacement on February 4, 2014. Thereafter, she has continued in regular treatment and has been assessed as totally disabled.

At a March 4, 2015, hearing, the claimant's newly retained counsel argued that the claimant has had a change in her condition since receiving a 10% SLU in 2003, and asked that the SLU be rescinded. He then asked that the claimant be granted awards commencing August 28, 2007 (the date Dr. Bhanusali's C-27 form was filed), in light of the change in condition. Special Funds objected, noting that there had already been a finding of no compensable lost time through July 26, 2011. Special Funds also raised issues of employment separation and labor market attachment, and asked to develop the record on those issues prior to any awards being granted. The WCLJ denied Special Funds request, and awarded benefits from February 7, 2014, to the date of the hearing, and continuing, at the temporary total disability rate. Special Funds was permitted to take credit against the previously awarded SLU. The findings are contained in the WCLJ's decision filed on March 10, 2015.

In an application for administrative review, Special Funds argued that the claimant had been partially disabled prior to her total knee replacement, yet there is insufficient evidence that she remained attached to the labor market during that time. Since the claimant accepted a finding of no compensable lost time through 2011, she must first demonstrate that she re-attached, or remained attached to the labor market prior to her recent surgery before she can be found entitled to benefits. Special Funds asked that the awards be rescinded pending development of the record regarding labor market re-attachment.

In rebuttal, the claimant argued that she has never been found to have voluntarily withdrawn from the labor market, and that the issue of labor market attachment has never been previously raised by the carrier or by Special Funds. The claimant argued that at this point, the issue of labor market attachment is moot because she is totally disabled as the result of her total knee replacement surgery, and is not obligated to seek employment. The claimant asked that the WCLJ's decision be affirmed.

LEGAL ANALYSIS

When a claimant's employment separation is voluntary, or for reasons unrelated to his or her disability, the claimant is required to demonstrate "by substantial evidence that the limitations on his employment due to his disability were a cause of his subsequent inability to obtain employment" before being found entitled to compensation benefits (Benesch v Utilities Mut. Ins. Co., 263 AD2d 585 [1999], internal citations omitted; and see Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 [2012]; Matter of Gross v BJ's Wholesale Club, 29 AD3d 1051 [2006]). In contrast, if the withdrawal is involuntary and related to the causally related disability, the Board may find that the subsequent loss of wages is attributable to the causally related disability (see Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 [2012]).

Thus, as was recently observed by the Court in Matter of Ouderkirk, 128 Ad3d 1301 (2015), the circumstances of a claimant's employment separation are relevant to whether, at what point, and to what extent such claimant is required to demonstrate labor market attachment.

Here, while the medical evidence and the limited testimony provided by the claimant suggest that she may have discontinued her employment at least in part due to her compensable injuries, at present, there is insufficient evidence upon which to make such a finding.

Therefore, the Full Board finds that the claimant's condition has changed, that the previously awarded SLU is hereby rescinded, and that awards are held in abeyance pending development of the record regarding the circumstances of the claimant's separation from employment. The WCLJ should determine whether the claimant's separation was voluntary or involuntary. If the separation is deemed to have been involuntary, a finding can be made re-instating the benefits directed by the WCLJ in the decision filed on March 10, 2015. If the WCLJ determines that the claimant's separation was voluntary and unrelated to her disability associated with this case, then the claimant will need to demonstrate labor market re-attachment in order to receive further wage replacement benefits (see Matter of Bacci v Staten Is. Univ. Hosp., 32 AD3d 582 [2006]).

CONCLUSION

ACCORDINGLY, the WCLJ decision filed March 10, 2015, is RESCINDED without prejudice and the case restored to the trial calendar for development of the record consistent with this decision. The case is continued.