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Workers' Compensation Board

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Case # G1062709
Date of Accident: 03/17/2014
District Office: Syracuse
Employer: Hamilton College
Carrier: Travelers Casualty Ins. Co.
Carrier ID No.: W010508
Carrier Case No.: EYM3744
Date of Filing of Decision: 02/27/2017
Claimant's Attorney: Felt Evans LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on January 24, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on October 5, 2016.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether the claimant violated Workers' Compensation Law (WCL) § 114-a; and,
  2. whether liability should be apportioned to a prior injury.

The Workers' Compensation Law Judge (WCLJ) established the claim for both shoulders, found that claimant did not violate WCL § 114-a, and that apportionment did not apply.

The Board Panel majority modified the WCLJ's decision to find that the claimant violated WCL 114-a, permanently disqualified her from receiving indemnity benefits, and concluded that the issue of apportionment was moot because of the permanent disqualification.

The dissenting Board Panel member would find that the claimant did not violate WCL § 114-a.

Claimant filed an application for Mandatory Full Board Review on October 14, 2016, arguing that she did not violate WCL § 114-a and that apportionment is was not warranted.

The carrier filed a rebuttal on October 31, 2016, asking that the decision of the Board Panel majority be affirmed. Alternatively, the carrier asserts that liability for claimant's right shoulder should be apportioned 50% unrelated.

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

FACTS

The carrier controverted this claim for an occupational injury to claimant's shoulders. In her C-3 (Employee Claim) dated July 3, 2014, claimant, a custodian, alleged that she injured both shoulders as a result of repetitive mopping, sweeping and vacuuming. Claimant indicated in her C-3 that she did not remember having a prior injury to the same body parts.

In addition to controverting the claim, the carrier argued that claimant violated WCL 114-a by failing to disclose a 2008 right shoulder injury and, in the alternative, that liability should be apportioned to the 2008 injury.

Claimant was examined by the carrier's consultant, Dr. Carr, on August 26, 2015. In his IME-4 (Practitioner's Report of Independent Medical Examination), Dr. Carr noted that among the medical records he had reviewed were a report from December 3, 2008, indicating that claimant was "seen for a shoulder injection on the right shoulder for tendonitis," and a report of an MRI of claimant's right shoulder taken on January 9, 2009. Dr. Carr wrote,

She indicated on my intake form never having any prior trouble with her shoulder. I mentioned to her there was an MRI report from 2009 and she said she did not even recall that and does not know why she got the MRI done. However, she said she probably had some sort of flare-up of discomfort back then and had it worked up but does not recall ever receiving any treatment for it.

With respect to causal relationship, Dr. Carr opined that claimant's shoulder injuries are "partially related to her job. Much of her condition is likely a combination of age, genetic predisposition and her rheumatoid disease. Even back in 2009 that MRI showed that she had findings at that time although she did not have a full-thickness tear yet."

In an addendum report dated October 12, 2015, Dr. Carr stated that claimant's "overall condition is partially related to age, genetic predisposition, and her rheumatoid disease but I would not specifically relate it to her fall in 2008."

The claimant testified at a hearing on September 17, 2015, that she first noticed her current bilateral shoulder problems while working as a custodian for the employer, which required her to clean dorms, offices, kitchens, bathrooms, and all the common areas. The claimant testified that during the summers the custodians, "pull out bunk beds. We debunk them, move them, pull furniture out of rooms. We strip and wax, along with washing walls and ceilings and wood work and windows and the furniture, that sort of thing" (transcript, 9/17/15 hearing, p. 3). She first noticed the shoulder problems during the summer of 2013, and reported the issue to the employer after she began having trouble sleeping around the end of October. She told her employer that she probably aggravated her shoulder and needed a cortisone injection. She then filled out an accident report and contacted her doctor. She started treating with Dr. Eckhardt and then switched her care to Dr. Raphael, who gave her a cortisone injection and sent her for an MRI that showed tears in both shoulders. The doctor did not send the claimant for physical therapy because it would not work, so he recommended surgery for each shoulder. She kept working despite the worsening shoulder pain.

With regard to the 2008 injury to her right shoulder, the claimant testified that she did not remember that it even occurred until she saw the carrier's medical examiner. The claimant testified that she never had shoulder problems that were this severe before.

On cross-examination, the claimant admitted that she reported on her C-3 that she had no prior similar injuries because she honestly did not remember the injury from 2008. The claimant also admitted she filled out a patient questionnaire for the IME with Dr. Carr on August 26, 2015, and she did not mention the 2008 injury because she did not remember it at that time either. The claimant testified that she did not remember the 2008 injury "until [Dr. Carr] mentioned it because I filled the paper out, I had no recollection of it and I mentioned it during the exam and I said if I had, it was a long time ago and then I kind of remembered it ached but I never did any physical therapy or anything and it went away. Until he mentioned it, I did not remember having a problem with it" (p. 8). The claimant confirmed that she worked for the employer in the same position for nine years. When questioned by the WCLJ, the claimant confirmed she does not have an independent recollection of the 2008 injury other than what she was told by the doctors.

Dr. Carr, an orthopedic surgeon, was deposed on October 9, 2015, and testified that he examined the claimant on behalf of the carrier on August 26, 2015. The claimant provided a history that she developed bilateral shoulder pain while working as a custodian in the employer's dorms during the summer of 2013. The claimant reported that her symptoms persisted. On the intake form, the claimant reported having no prior shoulder injuries, but she did have periodic flare ups of arthritis that she had good control over. Claimant's medical records indicated that she had an injection into the right shoulder on December 3, 2008, and an MRI of the right shoulder taken on January 9, 2009. When confronted about this prior treatment to the right shoulder, the claimant told Dr. Carr that she did not recall any of it.

On examination, Dr. Carr reported that the claimant had pain with internal rotation, mild arch pain with elevation consistent with impingement, as well as positive Jobs and Hawking's test, which confirms the impingement. Dr. Carr diagnosed the claimant with rotator cuff impingement, a partial thickness tear in the left shoulder, a small full thickness tear in the right shoulder, as well as degeneration of the labrum and AC joints. The doctor testified that the bilateral shoulder conditions were caused by a combination of the aging process, rheumatoid disease, predisposition to these types of injuries, and her work activities.

When asked about the impact of the 2008 injury, in which the claimant fell on her right shoulder, on his causal relationship opinion, Dr. Carr testified that it does not affect his opinion unless records of additional treatment were sent to him. Additionally, Dr. Carr compared the two MRIs of the right shoulder and each shows different pathology without progression of the findings from the 2009 MRI. The doctor then testified that he would apportion causal relationship fifty percent to the work activity and fifty percent to wear and tear from life in general, as well as genetic predisposition.

On cross-examination, Dr. Carr admitted that the claimant had no follow up treatment for the right shoulder after the January 9, 2009, MRI was taken. Dr. Carr further confirmed that the claimant told him that she did not have a recollection of the prior MRI and the injection.

Dr. Rapheal, a board certified orthopedist, was deposed on October 14, 2015, and testified that he began treating the claimant for bilateral shoulder injuries on October 22, 2014. The doctor took a history that the claimant worked as a custodian and she had pain in both shoulders for over a year that started when she worked. The claimant's examination findings consisted of pain in both shoulders with palpation, tenderness along the biceps tendon in the AC joint, decreased rotator cuff strength, as well as positive Hawking's and Neer's testing. Dr. Rapheal sent the claimant for MRI's of each shoulder which showed the right shoulder had a full thickness tear of the rotator cuff, and the left shoulder showed possible small tears in the rotator cuff, but some scan artifacts were preventing a better reading.

On cross-examination, Dr. Raphael admitted he was not aware of the prior 2008 right shoulder injury or the MRI from January of 2009. The doctor testified that he believed the right shoulder full thickness tear is causing her current pain. When told about the 2009 MRI findings, the doctor testified that the 2014 MRI showed that the partial tear of the subscapularis tendon seen on the 2009 MRI was healed.

The Board file contains numerous medical records pertaining to nonwork-related medical treatment claimant has received. Those records show that between the January 9, 2009, MRI and her first shoulder treatment with Dr. Eckhardt on March 17, 2014, the claimant had several injections. The records show that the claimant had a left ankle injection on June 1, 2009, bi-lateral hip injections on September 22, 2009, and again on April 26, 2010. The claimant then had injections in her low back on May 4, 2012, a facet injection on July 16, 2012, and another lumbar spine injection on September 26, 2012. The claimant had two MRI's after the January 9, 2009, MRI for the lumbar spine. The first MRI was on January 18, 2012, and August 22, 2012.

Since the January 1, 2009, MRI the claimant has undergone five surgeries, and she previously had two surgeries in the year a half before that MRI. The claimant had an arthroscopic right knee surgery on May 3, 2010, an inguinal hernia repair on April 28, 2011, a left carpal tunnel release on July 26, 2011, a gastric bypass on December 18, 2012, and a right trigger finger release on January 2, 2015. Before the MRI on January 1, 2009, the claimant had a right knee arthroscopic surgery on August 10, 2007, and a left knee arthroscopic surgery on January 16, 2008.

However, those medical records show that the claimant had no further right shoulder treatment after the January 21, 2009, MRI, which is consistent with the medical testimony of Dr. Carr.

By a decision filed November 20, 2015, the WCLJ established the claim for an occupational injury to both shoulders with a date of disablement of March 17, 2014, and set claimant's average weekly wage at $671.20 without prejudice. Additionally, the WCLJ found that the claimant did not violate WCL 114-a and declined to apportion liability for claimant's right shoulder.

The carrier requested administrative review of the WCLJ's findings, asserting that the claimant violated WCL 114-a, and that apportionment applies to the right shoulder injury with 50% of that injury being unrelated.

LEGAL ANALYSIS

WCL § 114-a

"If for the purpose of obtaining compensation pursuant to [WCL § 15], or for the purpose of influencing any determination regarding any such payment, a claimant knowingly makes a false statement or representation as to a material fact, such person shall be disqualified from receiving any compensation directly attributable to such false statement or representation. In addition, as determined by the board, the claimant shall be subject to a disqualification or an additional penalty up to the foregoing amount directly attributable to the false statement or representation" (WCL § 114-a[1]).

In this case, the claimant's testimony that she did not recall the prior injection and MRI of the right shoulder over the course of one month in December 2008 and January 2009 is credible. Given the numerous chronic health issues, injections and surgeries she had between then and the date of disablement, six years later, it is reasonable to believe that the claimant honestly could not recall the brief, limited treatment she received more than five years earlier. Furthermore, the WCLJ found that her testimony was credible when she testified in his presence, and he was in the best position to assess her veracity and credibility. Although the Board is entitled to make its own factual findings and is not bound by the credibility determinations of a WCLJ (see Matter of Ortiz v Five Points Correctional Facility, 307 AD2d 634 [2003]), the credibility determinations of the WCLJ who heard the testimony are entitled to considerable weight (Di Donato v Hartnett, 176 AD2d 1102 [1991]).

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant did not violate WCL § 114-a.

Apportionment

Apportionment is not applicable as a matter of law where the pre-existing condition was not the result of a compensable injury, and the claimant was able to effectively perform his or her job duties at the time of the work-related accident despite the pre-existing condition (Matter of Peck v Village of Gouverneur, 15 AD3d 735 [2005], lv denied 5 NY3d 707 [2005]). The "dispositive issue is not whether a claimant's preexisting condition was symptomatic but, rather, whether such condition was disabling" (Matter of Bruno v Kelly Temp Serv., 301 AD2d 730 [2003]).

Here, the medical evidence does not support a finding that apportionment applies because the claimant was employed and working full duty without restrictions in the same position as she was at the time of the March 17, 2014, date of disablement.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that apportionment does not apply.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed November 20, 2015, is AFFIRMED. No further action is planned by the Board at this time.