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Case # 59513023
Date of Accident: 05/26/1995
District Office: Albany
Employer: Powell & Minnock Brick Works
Carrier: Special Funds Cons Comm
Carrier ID No.: W997001
Carrier Case No.: 59513023
Date of Filing of Decision: 05/19/2017
Claimant's Attorney: Alex C. Dell, Esq.
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 29, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant is barred from receiving further indemnity benefits pursuant to Workers' Compensation Law (WCL) § 123.

The Workers' Compensation Law Judge (WCLJ) found that WCL § 123 did not apply to this claim, as there was a change in condition between 2010 and 2013.

The Board Panel majority disagreed, finding that the first medical record reflecting a change in condition is dated more than 18 years after the date of accident and, therefore, WCL § 123 bars receipt of further indemnity awards by the claimant.

The dissenting Board Panel member would have found that WCL § 123 does not bar the reopening of the case.

The claimant filed an application for Mandatory Full Board Review on May 26, 2016, arguing that the WCLJ correctly determined that WCL § 123 does not bar the claimant from further indemnity benefits, as the medical reports submitted within 18 years from the date of accident sufficiently show a change in the claimant's condition. The claimant contends that the "medical reports show an increase in pain, a greater presence of arthritis, an indication for surgery, and an overall worsening of the claimant's right knee condition as a whole."

The Special Funds Conservation Committee (Special Funds) filed a rebuttal on June 28, 2016, arguing that WCL § 123 applies to any future indemnity payments, as the medical reports from 2010-2013 were not sufficient to act as an application to reopen the case.

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

FACTS

By a decision filed January 28, 1997, the case was established for an injury to the claimant's right knee as the result of an accident that occurred on May 26, 1995, and the claimant was awarded a 17.5% schedule loss of use of the right leg, entitling him to 50.4 weeks of benefits.

The carrier submitted a form C-8 (Notice that Payment of Compensation for Disability has Been Stopped or Modified), indicating that the most recent payment of compensation was mailed on January 2, 1997.

The claimant has treated regularly with Dr. Fuchs, an orthopedist, since June 30, 1995. The claimant had arthroscopic surgery in 1997.

By a decision filed August 14, 2003, the WCLJ found there was no compensable lost time for the period from January 16, 1997, to August 8, 2003, liability for the claim was transferred to the Special Funds pursuant to WCL § 25-a, and the case was closed.

In a medical report based on a March 10, 2009, examination, Dr. Fuchs noted that the claimant had been doing "pretty well" since surgery done more than ten years earlier. Physical examination was unchanged and radiographs were not "markedly different than they were a year ago." Dr. Fuchs noted that the plan was for a routine follow up in one year.

Dr. Fuchs next examined claimant on June 22, 2010, and stated in the resulting report that the claimant had increasing pain over the past month with difficulty sleeping. On physical examination, the claimant lacked five degrees of full extension of the knee and x-rays were reported as showing "further arthritis." Dr. Fuchs indicated that he was "going to avoid any surgical intervention for as long as possible," that he was going to treat the claimant with an anesthetic injection, and he would see the claimant in a year for a routine follow up.

In a medical report based on an August 2, 2011, examination, Dr. Fuchs found that the claimant had increasing "lumpiness" on the anteromedial aspect of the knee which appeared to be bony, and the claimant had some discomfort. Dr. Fuchs noted that the x-rays are consistent with arthritis medially and in the patellofemoral joint. The claimant was given an anesthetic injection.

In a medical report based on a January 3, 2012, examination, Dr. Fuchs noted that the claimant reported that his knee had become severely swollen and painful about two months before, but has improved. On physical examination, the claimant had full range of motion. Dr. Fuchs noted that the claimant does not want a shot or surgery, and that he would see the claimant on an as needed basis.

In a medical report based on an April 1, 2013, examination, Dr. Fuchs reported that the claimant continued to complain of pain in the knee, but was declining surgical intervention at that time. Dr. Fuchs noted that the claimant wanted a cortisone shot and a prescription for ibuprofen.

In a medical report based on an October 14, 2013, examination, Dr. Fuchs reported that the claimant advised that he could no longer tolerate the pain in the knee, he is not sleeping at night, and has difficulty working. The doctor found that range of motion of the knee was from zero to 100 degrees and x-rays showed significant narrowing of the patellofemoral joint. Dr. Fuchs recommended a total knee replacement.

On October 23, 2013, Dr. Fuchs submitted a request for authorization for a right total knee replacement. The Special Funds granted the request on October 23, 2013, and the surgery was performed on February 13, 2014.

The Special Funds orthopedic consultant, Dr. Belmonte, examined the claimant on April 23, 2015, and issued a corresponding report opining that the claimant's injury was amenable to a 55% schedule loss of use of the right leg.

On May 1, 2015, the claimant filed an RFA-1LC (Request for Further Action by Legal Counsel), requesting a hearing on the issue of permanency in light of a recent consultant's report.

On May 18, 2015, the Special Funds filed form RFA-2 (Request for Further Action by Carrier/Employer), raising the issue of WCL § 123.

During a hearing on June 30, 2015, the WCLJ found that there was evidence of a change in the claimant's medical condition within 18 years of the date of accident, as the claimant's condition was getting worse, and more treatment was required, including surgery, and, therefore, WCL § 123 does not apply. The WCLJ's findings were memorialized in a decision filed July 3, 2015.

The Special Funds filed an application for administrative review contending that the claimant has been treating regularly through the years for his knee injury, but no change of condition was reported until October 14, 2013, which was outside of the time frames established in WCL § 123. The Special Funds contended that the claimant has treated at regular intervals, but there was nothing to indicate a change in condition between 2010 and 2013, as found by the WCLJ.

In rebuttal, the claimant asserted that the WCLJ correctly found that WCL § 123 does not bar the claim for indemnity benefits. The claimant asserted the claim was reopened within 18 years from the date of accident due to the documented worsening of the claimant's right knee condition in Dr. Fuchs' reports from 2010-2013.

LEGAL ANALYSIS

"Section 123 provides the Workers' Compensation Board with authority to reopen closed cases, subject to the time limitation that no awards shall be made against the Special Fund or against an employer where the application is made 'after a lapse of eighteen years from the date of the injury or death and also a lapse of eight years from the date of the last payment of compensation'. This 'eighteen-and eight'-year time limitation applies only to cases which have been closed and are being reopened, but would not bar a new claim or continuing consideration of an open case" (Matter of Zechmann v Canisteo Volunteer Fire Dept., 85 NY2d 747 [1995] [citations omitted]).

"The Board may deem medical reports an application to reopen if the reports give it sufficient notice of a change in a claimant's condition, rather than simply indicating continued disability and treatment" (Matter of Donnelly v Alden Cent. Schools, 83 AD3d 1368 [2011].

Here, the claimant's accident occurred on May 26, 1995, and the claimant's initial schedule loss of use award was paid on January 2, 1997. Therefore, the critical date for WCL § 123 purposes is May 26, 2013. As found by the majority, none of the reports of Dr. Fuchs prior to his October 14, 2013, report recommending claimant undergo total knee replacement surgery, reflected a change in condition that could be considered an informal request to reopen the claim. Those reports merely reflect claimant's ongoing symptoms during regular follow-up visits with Dr. Fuchs, and do not suggest the need for action by the Board. As the October 14, 2013, report was filed more than 18 years from the date of accident and 8 years from the last payment of compensation, WCL § 123 applies to bar further lost wage benefits.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant is barred from receiving further indemnity benefits pursuant to WCL § 123. The claimant remains entitled to seek causally related treatment, consistent with the Medical Treatment Guidelines.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed July 3, 2015, is REVERSED. WCL § 123 bars receipt of further indemnity awards by the claimant. No further action is planned by the Board at this time.