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Case # G1340103
Date of Accident: 08/20/2015
District Office: Buffalo
Employer: The Buffalo News Inc
Carrier: Charter Oak Fire Ins Co
Carrier ID No.: W054001
Carrier Case No.: E2W3989
Date of Filing of Decision: 05/19/2017
Claimant's Attorney: Connors and Ferris, 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 18, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether claimant sustained an occupational right shoulder rotator cuff tear.

The Workers' Compensation Law Judge (WCLJ) established the claim for an occupational right shoulder injury with an August 20, 2015, date of disablement.

The Board Panel majority affirmed the WCLJ decision.

The dissenting Board Panel member would disallow the claim.

The carrier filed an application for Mandatory Full Board Review on May 16, 2016, arguing that the claimant has failed to meet his burden of proving a causal relationship between his shoulder injury and his employment and that his condition is not an occupational disease within the meaning of the Workers' Compensation Law (WCL).

The claimant filed a rebuttal on June 15, 2016, arguing that the record supports the establishment of this claim as an occupational disease.

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

FACTS

Claimant filed a C-3 (Employee Claim) on September 25, 2015, alleging that he sustained a torn right rotator cuff as a result of the repetitive nature of his employment in the employer's mail room. The C-3 indicates that claimant did not remember having another injury to the same body part. The carrier controverted the claim.

In a July 27, 2015, report, claimant's treating physician, Dr. Sy, stated that claimant was there for "a sick visit," and complained of nasal congestion, right ear ache and a cough. During that visit, claimant also complained "of right shoulder pain. He fell on ice last year and has not been able to get rid of the pain since then. He does not feel his mobility is affected much but he feels a crunching sensation when he lifts his arm up." Dr. Sy recommended that claimant obtain a right shoulder x-ray and to consider seeing a physical therapist.

Claimant began treating with an orthopedist, Dr. Wind, on August 31, 2015. In his initial report, Dr. Wind stated:

He relates his right shoulder pain to the repetitive nature of his job where he has to stack magazines and newspapers slightly above chest level on a daily basis. He denies any issues to his right shoulder prior to September when his symptoms started and they been getting progressively worse since February. Denies any acute mechanism of injury. He reports pain diffusely throughout the right shoulder which is worse with overhead activity. He reports stiffness. He denies any apparent weakness in the right upper extremity.

Based on an MRI of claimant's shoulder, Dr. Wind diagnosed a complete tear of the supraspinatus tendon, near complete tear of the subscapularis tendon, near complete tear of the long head of the biceps tendon with medial subluxation of the biceps, and partial thickness tear of the infraspinatus.

Dr. Wind has requested authorization to perform rotator cuff repair surgery.

Claimant was examined by the carrier's consultant, Dr. Luzi, on October 21, 2015. In his IME-4 (Independent Examiner's Report of Independent Medical Examination) Dr. Luzi wrote:

The claimant had no specific injury and related [his shoulder symptoms] to his work activities of stacking magazines and newspapers in the normal course of his work activities. He does this from loading hoppers with bundles of newspaper inserts in the mailroom. He reported this as a work injury in September 2015, and states that the symptoms went back approximately one year, hence, the date of injury of 9/1/14.

Dr. Luzi opined that claimant's rotator cuff tear had developed many years ago, likely before he started working for the employer. Dr. Luzi found that the "work activities that he describes would not likely cause the rotator cuff to tear, but would merely aggravate these symptoms once the tears have been present." The doctor went on to state that "age is the primary factor that leads to degeneration of the rotator cuff over time. One's work history can play a part, but these tears can occur in individuals who perform even sedentary work."

In an addendum report dated October 30, 2015, Dr. Luzi noted that he had reviewed the July 27, 2015, report of Dr. Sy which indicated that claimant had fallen a year earlier, injuring his right shoulder. Based on Dr. Sy's report, Dr. Luzi modified his opinion on causal relationship to conclude that claimant "had developed right shoulder pain not from working, but from falling on ice. This would make causal relationship unrelated to work activity, and related to the fall..."

Claimant testified at a hearing on November 5, 2015, that he has been working for the employer as a mailroom helper for a little over four and a half years. His job required him to load stacks of advertisement inserts weighing five to ten pounds into a hopper for his entire shift. According to claimant, approximately three years ago he slipped and fell on ice, after which his right shoulder hurt for "a day or two and it was fine" (p. 9). He did not seek treatment after the fall. He first experienced pain in his right shoulder in September 2014 and thought he had arthritis. His shoulder would stiffen up when it rained or got cold. When he saw Dr. Sy in July 2015 he told the doctor about his shoulder and "about the fall that I had three years ago" (p. 13). He has not lost any time from work as a result of his shoulder condition.

Dr. Wind was deposed on November 16, 2015, and testified that at the time of his initial examination of claimant on August 31, 2015, "it seemed with his repetitive nature of his job there was a causal relation of a chronic repetitive type of work resulting in wear and breakdown of the rotator cuff" (p. 6). According to Dr. Wind, based on the history provided by claimant, "his work was definitely a contributing factor to his rotator cuff. He is only 52 years old so you wouldn't expect such a large rotator cuff tear in somebody who was 52 that didn't participate in some type of, you know, manual labor type position" (p. 7).

On cross-examination, Dr. Wind stated that claimant did not advise him that he had previously experienced pain in his right shoulder after falling, or that he complained to Dr. Sy about his right shoulder symptoms and that Dr. Sy had ordered x-rays and referred him to physical therapy. Based on the history in Dr. Sy's July 27, 2015, report, Dr. Wind testified that the history he had been provided by claimant "wasn't a complete history" (p. 9). Dr. Wind confirmed that claimant had denied having any specific injury to his shoulder. The findings reflected in the MRI could have resulted from a fall. Based on the amount of fatty atrophy in claimant's shoulder, Dr. Wind believed that claimant's rotator cuff tear had "been present for some time," but could not "quantify the exact amount of time" (p. 11). Dr. Wind agreed with Dr. Luzi "that it likely may have been the fall that created the tear, but no one knows for sure. There is no way to tell that for 100 percent certainty, but certainly, his level of activity at this job I think is contributory to a certain extent" (p. 12). Dr. Wind testified it was "unlikely" that claimant's employment "caused the injury, but I think it may have aggravated his underlying injury" (p. 15). Dr. Wind conceded that when he said that claimant's work may have aggravated his shoulder injury, he meant only that claimant might feel pain.

Dr. Luzi was deposed on November 23, 2015, and testified that based on the MRI, claimant's rotator cuff tear had been present for "over a year, maybe more" (p. 9). It was Dr. Luzi's opinion that claimant's rotator cuff tear "was a preexisting problem aggravated by the work activities" (id.). Claimant's fall "may have been the straw that broke the camel's back as far as his significant rotator cuff tears and biceps tendon tear" (p 12).

When advised that claimant had testified that his slip and fall had occurred three years earlier, rather than a year ago as indicated in Dr. Sy's report, Dr. Luzi testified that abnormalities in the MRI of claimant's shoulder are more consistent with an injury that occurred three years earlier (p. 13). According to Dr. Luzi, claimant had "been symptomatic over time and it seems like the work activities merely just aggravated his symptoms, not caused them. So I do not find causal relationship to the work activities" (p. 13). Dr. Luzi testified that claimant could have performed his job with no issues for several years despite having a significant rotator cuff tear, because other muscles were able to compensate for that defect, and he has "seen many people like this that are able to do fairly physical jobs despite chronic rotator cuff tears" (p. 16).

By a decision filed December 17, 2015, the WCLJ established the claim for an occupational right shoulder injury with an August 20, 2015, date of disablement.

The carrier sought administrative review.

LEGAL ANALYSIS

Both Dr. Wind and Dr. Luzi found that it was likely that claimant's rotator cuff tear was not caused by his employment, but was the result of falling on ice. Nonetheless, both doctors were of the opinion that claimant's employment aggravated his condition. "In order to establish an occupational disease based upon an aggravation of a preexisting condition, it must be demonstrated that the condition was dormant and non-disabling and that a distinctive feature of the employment caused the disability by activating the condition" (Matter of Pulos v Asplundh Tree, 29 AD.d 1073 [2006]). Therefore, the dispositive question is whether claimant's shoulder condition was dormant and non-disabling before being made symptomatic by a distinctive feature of his employment.

In his July 27, 2015, report, claimant's treating family practitioner, Dr. Sy, stated that claimant "fell on ice last year and has not been able to get rid of the pain since then." When he treated with Dr. Wind on August 31, 2015, claimant provided a history of right shoulder symptoms beginning in September 2014, which had been getting progressively worse since February 2015. However, claimant made no mention of injuring his shoulder in a fall to Dr. Wind, and denied any acute mechanism of injury. Claimant testified that he fell and hurt his right shoulder three years earlier, but did not seek treatment and that his shoulder only hurt for a day or two.

Dr. Luzi testified that claimant's MRI abnormalities were more consistent with a traumatic injury that occurred three years ago, than one that occurred only a year earlier. However, Dr. Wind testified that while it was clear from the MRI that claimant's rotator cuff tear had been present for some time, it was impossible to determine exactly how long.

Claimant's credibility is undermined by his failure to tell Dr. Wind that he had injured his shoulder in a fall, the discrepancy in the histories claimant provided to Dr. Sy and Dr. Wind, and his failure to mention that he had injured his shoulder in a fall in his C-3. The Full Board finds claimant's testimony that he fell and injured his shoulder three years earlier, and that his shoulder hurt for only a day or two after his fall, not to be credible. The Full Board finds that the most credible history is contained in Dr. Sy's July 27, 2015, report. That was the first medical evidence reflecting a complaint of shoulder pain by the claimant and was conveyed when claimant was seeing the doctor for an ear infection and had no reason to offer a contrived or incomplete history in furtherance of a claim for compensation benefits. In addition, the history of sustaining a fall one year prior is also consistent with the history that claimant provided to Dr. Wind of his symptoms beginning in September 2014.

Therefore, the Full Board finds the preponderance of the credible evidence in the record supports a finding, based on the July 27, 2015, report of Dr. Sy, that claimant sustained a right rotator cuff tear in a non-work-related fall in 2014, and that injury never stopped being active and symptomatic. The claimant's employment did not act on his condition in "such a manner as to cause a disability that did not previously exist" (Matter of Jarvis v Stewart Airport Diner, 271 AD2d 816 [2000]), as claimant testified that he was able to perform his job despite his condition and lost no time from work. Accordingly, because claimant's condition remained active and symptomatic at all times since his non-work-related fall, this claim is not compensable as on occupational disease resulting from the aggravation of preexisting dormant condition which was acted upon by his employment in a manner that rendered the condition disabling (see Matter of Webb v Western Electric Co., 64 AD2d 744 [1978]).

Therefore, the Full Board finds that the record supports a finding that claimant did not sustain a compensable occupational disease.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed December 17, 2015, is REVERSED and this claim disallowed. No further action is planned by the Board at this time.