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Case # 59803423
Date of Accident: 12/15/1997
District Office: NYC
Employer: A & P Supermarket
Carrier: Great Atlantic & Pacific Tea
Carrier ID No.: W440507
Carrier Case No.: 005000000935WC01
Date of Filing of Decision: 05/25/2017
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 April 25, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed April 1, 2016.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether new evidence attached to the self-insured employer's (SIE) application for administrative review should have been considered; and
  2. whether the claim should be established for consequential diabetes, or if further development of the record is required.

The Workers' Compensation Law Judge (WCLJ) denied the SIE's request to further develop the record, and amended the claim to include consequential diabetes.

The Board Panel majority accepted evidence that the SIE submitted for the first time within its application for administrative review, rescinded the amendment of the claim to include consequential diabetes, finding that the record required further development on the issue, and assessed a $100.00 penalty against the SIE for being unjustifiably unprepared for the February 18, 2015, hearing.

The dissenting Board Panel member would not have considered the new evidence submitted with the carrier's application for administrative review and would find that the claim was properly amended to include consequential diabetes without further development of the record.

The claimant filed an application for Mandatory Full Board Review on April 21, 2016, contending that the Board Panel majority erred in rescinding the finding that the claimant developed consequential diabetes and directing additional development of the record.

The SIE did not file a timely rebuttal.

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

FACTS

This claim was initially established for a work-related injury to the claimant's back resulting from an accident which occurred on December 15, 1997. The claim was subsequently amended to include consequential depression, erectile dysfunction, left knee, right wrist, neck, and pulmonary emboli. The claimant has been classified as permanently totally disabled.

In a narrative report dated May 21, 2014, the claimant's treating orthopedist, Dr. Shein, noted that he was referring claimant to Dr. Berang "with a view to epidural steroid injections to see if the steroid can percolate around the nerve roots and relieve his symptoms which would not only prove therapeutic, but diagnostic..."

Claimant was hospitalized at Montefiore Hospital in July 2014 based on his back pain. Two medical narrative reports from Montefiore Hospital, dated July 28, 2014, and July 29, 2014, diagnosed the claimant with diabetes mellitus type 2.

In a report dated August 4, 2014, Dr. Shein indicated that the claimant "is struggling now with the recent onset of diabetes which has been diagnosed. This is all due to the fact that, because of his infirmed status [as a result of his work-related injury], he has been unable to exercise and has gained weight. He informs me that he was receiving high doses of steroids which also played a role in his diabetic profile."

In a report dated August 21, 2014, Dr. Shein indicated that the claimant "has become diabetic due to all steroids given to him and has continue[d] to gain weight."

During a hearing on August 27, 2014, the claimant raised the issue of consequential diabetes. The WCLJ found prima facie medical evidence of a consequential diabetes condition and directed the SIE to produce a consultant's report on this condition within 60 days. The WCLJ's findings were memorialized in a decision filed September 5, 2014.

The claimant was examined by the SIE's consultant, Dr. Rosman, on October 22, 2014, and a corresponding report was issued. Dr. Rosman noted that the claimant was a poor historian, and that the review was based upon the records forwarded by the SIE, the hospital records from the emergency room, and "a pharmacy report obtained by my office." Dr. Rosman stated in his report that claimant advised him that "[A]fter spinal surgery in 2013 he was placed[d] on large doses of steroids for some two months and was then told by his internist that his sugar was elevated and was referred to see an endocrinologist but ended up in the ER prior to that visit happening." The first documented evidence of elevated sugar was on July 17, 2014, while claimant was hospitalized, although claimant was not diagnosed with or treated for diabetes until he was readmitted to the hospital two weeks later. Dr. Rosman diagnosed the claimant with diabetes which was not well controlled with medication.

Dr. Rosman stated in his report that claimant related that his family physician had noted elevated sugars shortly before his July 2014 hospitalization, "(unclear as to exact dates and no records of these visits are available for review) after receiving a 2 month course of steroid therapy for a severe allergic skin reaction after back surgery. This could certainly have been the etiology of the diabetes, viz., steroid induced diabetes. If this is so it would certainly be indirectly related to his initial work-related injury of December 1997." Dr. Rosman noted that while diabetes occurs in 16.2% of the population in the claimant's age range, the claimant is not in a cultural group which experienced a higher incidence of diabetes, nor was there a family history of this disease. The claimant had alleged that the steroids caused him to gain 50 lbs. Dr. Rosman summarized that the claimant "has poorly controlled diabetes type 2 possibly caused by a prolonged course of steroids."

On November 20, 2014, the claimant filed a request for a hearing to establish consequential diabetes. In the request the claimant stated:

"The prima facie medical evidence is Dr. Shein's report of 8/21/14. The IME report from Dr. Rosman dated 10/30/14 does not dispute the causal relationship as Dr. Rosman states that the steroid therapy 'could certainly have been the etiology of the diabetes...and he has poorly controlled diabetes Type 2 possibly caused by a prolonged course of steroids.' Therefore, since there is no joined issue please establish the case for consequential diabetes..."

In response, on December 16, 2014, the Board issued notice that based on the claimant's request the Board is scheduling the case for a hearing, and a hearing notice will be issued in the near future.

On January 27, 2015, the Board issued a Notice of Workers' Compensation Hearing indicating that a hearing was scheduled for February 18, 2015, to address, in part, the issue of consequential diabetes.

During the February 18, 2015, hearing the claimant requested that the claim be amended for consequential diabetes, as the SIE's consultant did not counter the claim for consequential diabetes. In response, the SIE requested development of the record as there were "enough question of facts that the origins of the diabetes and its development to require both lay and medical testimony." The SIE noted that while its consultant stated that diabetes could be caused by steroid use, there are other ways the condition can arise, and Dr. Rosman's report "speaks to that." The WCLJ amended the case to include consequential diabetes. The SIE noted an exception on the record. The WCLJ's findings were memorialized in a decision filed February 24, 2015.

The SIE filed an application for administrative review contending that it was premature to amend the claim to include consequential diabetes without first developing the record. The SIE asserted that the decision amending the claim for consequential diabetes should be rescinded, and the matter returned to the hearing calendar for further development of the record, including the production of the claimant's entire medical record regarding this condition. The SIE attached medical records to its application which were not previously made part of the record, together with a subpoena duces tecum to Dr. Hershenson, dated February 27, 2015, for a certified copy of the "complete file contents regarding claimant." The return date was March 3, 2015, and the SIE included an authorization signed by the claimant on February 18, 2015, authorizing release of his treatment records from Dr. Hershenson.

The claimant submitted a rebuttal contending that the decision should be affirmed because the SIE's own consultant found causal relationship, and there was no conflicting medical evidence. The claimant contended that the SIE's untimely attempt to impeach its own doctor through records which were belatedly obtained and do not support the SIE's position, should not be honored. The claimant contended that the discrepancies in the medical records are minor and irrelevant.

LEGAL ANALYSIS

Newly Discovered Evidence

"If the application for review offers new and additional evidence that was not in the record and was not presented to the [WCLJ], it must state reasons showing that such evidence could not have been presented to the [WCLJ] or could not have been produced as directed by the [WCLJ]. The board panel, in its discretion, may accept such evidence or may deny review and refuse to consider such new or additional evidence if it finds that such evidence could and should have been presented to the [WCLJ]" (12 NYCRR 300.13[g]). Where a party presents "a credible reason" for its failure to submit the evidence before the WCLJ, it is not an abuse of discretion for the Board Panel to consider the evidence when it is submitted with an application for administrative review (Matter of Bonilla v Country Rotisserie of Riverhead, 122 AD3d 1035 [2014]).

Here, the claimant was examined by the SIE's consultant on October 22, 2014, and the corresponding report was filed on November 4, 2014. On November 20, 2014, the claimant filed a request for a hearing, noting that the SIE's consultant does not dispute the causal relationship of the claimant's diabetes. On December 16, 2014, the Board issued a notice that it received the claimant's request for a hearing, and indicated a hearing would be scheduled soon. On January 27, 2015, the Board issued a hearing notice that a hearing was scheduled for February 18, 2015, to address, in part, the issue of consequential diabetes. During the February 18, 2015, hearing, the SIE never indicated that it had any difficulty obtaining the claimant's medical records, requested development of the record with only testimony, the WCLJ implicitly denied the SIE's request and amended the claim to include consequential diabetes. Within its application for administrative review, the SIE submitted additional medical records, indicating that after the hearing the claimant identified the name of his internist, and that this physician had not responded to the SIE's request for medical records.

The Full Board declines to consider the additional medical records the SIE submitted for the first time with its application for administrative review, as the new medical records were submitted untimely, and the SIE did not provide a sufficient excuse why it did not attempt to identify the claimant's internist and submit the records sooner.

Consequential Diabetes

"It is axiomatic that a claimant bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence" (Matter of Williams v Colgate Univ., 54 AD3d 1121 [2008] [citations omitted]). The medical opinion need not be expressed with absolute or reasonable certainty (Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890 [2009]). It must, however, be an indication of sufficient probability as to the cause of the injury, and the medical opinion must be supported by a rational basis (id.). "[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 [2008] [citations and internal quotation marks omitted]).

A medical opinion is not supported by a 'rational basis' when a basic assumption underlying that opinion is not supported by the record (see Matter of Shkreli v Initial Contract Servs., 55 AD3d 1067 [2008])

Here, the claimant was diagnosed with diabetes in July 2014. Both Dr. Rosman and Dr. Shein opined that the claimant's diabetes resulted from a prolonged course of steroid use. In a May 21, 2014, report, Dr. Shein, noted that he was referring claimant to Dr. Berang "with a view to epidural steroid injections..." In his August 4, 2014, report, Dr. Shein indicated that claimant "informs me that he was receiving high doses of steroids which also played a role in his diabetic profile...," but did not indicate what doctor administered the steroids or why they were prescribed.

In his October 22, 2014, report, Dr. Rosman stated that claimant had advised that "after spinal surgery in 2013 he was placed[d] on large doses of steroids for some two months" and that "after receiving a 2 month course of steroid therapy for a severe allergic skin reaction after back surgery," thereafter was found to have elevated blood sugar. However, while claimant has undergone several spinal surgeries, he did not undergo back surgery in 2013. He did, however, undergo a repeat lumbar decompression and fusion at L3-L4, L5-S-1 on October 12, 2012, performed by Dr. Lee.

The record is devoid of direct evidence that claimant was prescribed a prolonged course of steroids for treatment of his causally related injuries. It does not appear that either Dr. Rosman or Dr. Shein reviewed any medical records describing what steroids claimant was prescribed, the doses prescribed or their duration, and appear to have based their opinion on causal relationship solely on the uncorroborated history provided by claimant. In the absence of such evidence, the opinions of Dr. Rosman and Dr. Schein that claimant's diabetes resulted from a prolonged course of causally related steroid use is not supported by the evidence in the record.

Therefore, the finding that claimant's diabetes is consequentially related is hereby rescinded, without prejudice, until claimant produces evidence that he underwent a prolonged course of causally related steroid use, and an opinion on causal relationship which takes into consideration that evidence.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed February 24, 2015, is MODIFIED to rescind, without prejudice, the finding that claimant's diabetes is consequentially related, and the matter returned to the calendar for further development of the record as indicated above. The case is continued.