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Case # G0912748
Date of Accident: 05/31/2014
District Office: Albany
Employer: Bimbo Bakeries USA, Inc.
Carrier: Indemnity Ins of N America
Carrier ID No.: W112502
Carrier Case No.: C494C3958713
Date of Filing of Decision: 08/21/2017
Claimant's Attorney: Buckley Mendleson Criscione & Quinn, PC
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on July 18, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed September 16, 2016.

ISSUES

The issues presented for Mandatory Full Board Review are whether claimant's injury is an accident or an occupational disease, and whether the claim was filed timely pursuant to Workers' Compensation Law (WCL) § 28.

The Workers' Compensation Law Judge (WCLJ) established the claim for an occupational low back injury and set the date of disablement as May 31, 2014.

The Board Panel majority reversed the WCLJ and disallowed the claim, finding that claimant sustained an accidental injury on August 8, 2011, and that the claim was untimely.

The dissenting Board Panel member would affirm the WCLJ.

The claimant filed an application for Mandatory Full Board Review on October 12, 2016, arguing that the record supports establishing this claim as an occupational disease, as claimant's August 2011 "incident" did not require medical treatment, and that it "would be purely speculative to conclude that the claimant's medical condition existing in 2014 somehow relates back to the 'specific accident' occurring in August of 2011."

The carrier filed a rebuttal on October 24, 2016, arguing that the record supports a finding that claimant's back condition was caused by an accidental injury on August 8, 2011, and that a claim based on that accident is time barred pursuant to WCL § 28.

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

FACTS

Claimant filed a C-3 (Employee Claim) on July 10, 2014, alleging that she experienced "sharp spasms going down buttocks on right side" and "pain radiating to left side and into hip." She attributed her symptoms to constant bending and lifting heavy trays at work, and listed the date of injury/onset of illness as May 30, 2014, and indicated she first sought medical treatment on June 6, 2014. The carrier controverted the claim.

In a C-4 (Doctor's Initial Report) dated July 21, 2014, based on a May 31, 2014, examination, Dr. Litwa indicated that claimant was experiencing pain in her low back and right buttock. The C-4 report lists the date of injury/onset of illness as May 30, 2014. Regarding the history of where and how the injury occurred, Dr. Litwa listed the employer's address and stated, "[p]ulling, stabbing feeling in lower back." Dr. Litwa found that claimant had temporary impairment of less than 33%.

In a C-4 (Doctor's Initial Report) dated July 10, 2014, based on a June 2, 2014, examination, Dr. Kronick indicated that claimant was complaining of pain and stiffness in her lower back, and had limited range of motion. The C-4 report lists the date of injury/onset of illness as August 8, 2011, but did not provide a history of how the injury occurred. Dr. Kronick found that claimant had temporary impairment of between zero and five percent.

A June 6, 2014, OT/PT-4 report by physical therapist Jill Graham lists the date of injury as August 8, 2011, and in an attached narrative report, Graham noted that Dr. Kronick had diagnosed low back pain, and stated,

Patient is a 41 year old female who presents to physical therapy with the above mentioned diagnosis. Patient reports a 3 year history of lumbar pain as a result of overuse. Pt is a machine operator at Bimbo Bakery. Pt reports injury initially in 2011 while working. She reports every day since then she has had back pain. Pain is worse at night and in the morning. Reports she is aware of discomfort during the day but feels better when she is moving around.

Claimant was examined by Dr. Pilitsis, a neurosurgeon at Albany Medical Center, on August 6, 2014. In her report of that examination, which was addressed to Dr. Kronick, Dr. Pilitsis wrote,

As you know, [claimant] is a 41-year-old female, who has had ongoing low back issues for about 3 years now. She is a production worker, in particular operates a large machine. She is often doing repetitious movements as well as lifting and wearing stiletto boots and on her feet for long hours. She says that she began having pain particularly in her right low back into her right buttock about 3 years ago. She says initially it was tolerable and then she began having spasms that got progressively worse in her low back to the point where it would wake her up at night.

Dr. Pilitsis stated that claimant related her back pain "to her work as a machine operator. She says she spends long hours on her feet doing repetitious movement and lifting." Dr. Pilitsis recommended that claimant obtain an MRI of her lumbar spine.

In a C-4 report dated December 17, 2014, based on her August 6, 2014, examination of the claimant, Dr. Pilitsis found that claimant had repetitive strain injury to her low back which was causally related to spending "long hours on her feet doing repetitious movements and lifting" at work.

The carrier did not have claimant examined by an independent medical examiner.

Claimant testified at a hearing on April 7, 2015, that she had worked for the employer, a bakery, for 20 years. Her current position was as a machine operator, and she had done that job for approximately three years as of May 2014. Her job as a machine operator requires her to pack product and pull heavy pallets, and involves "[a] lot of repetitious motion" (transcript 4/7/15 hearing, p. 6). She would stand her entire eight hour shift. She worked on a production line which involved "products coming down the line at a fast pace, pull them off the line, put them into trays, grab another tray, put it on top of that tray, and pack up to 15 high, which is quite high" (id.). The trays weighed 10 pounds each when loaded with product. Her job required constant bending and pulling heavy wooden pallets. She performed repetitious lifting, bending and stacking her entire shift. Her previous position with the employer as a bakeshop helper was even more repetitious, and involved more bending and lifting than her current job as a machine operator. Claimant denied ever having a "specific accident" involving her low back. She began developing low back problems about three years earlier, but has continued to work and has lost no time from work due to her back. Her back symptoms have gotten progressively worse, and on May 30, 2014, she advised the employer's assistant manager about her back problems. She went to urgent care the next day, May 31, 2014. She subsequently followed-up with Dr. Kronick, who referred her to Dr. Pilitsis, a neurosurgeon. She had not received treatment for her back prior to 2014.

On cross-examination, claimant testified that she had provided Dr. Kronick with a date of injury of August 11, 2011, "[b]ecause that's the job that I was working on when I felt like my injury happened when I was a bakeshop helper" (p. 16). On August 11, 2011, while working as a bakeshop helper, she was packing product as it came off the line "[w]hen I bent over and turned to put the tray up, my back just went out" (p. 17). She filled out an incident report and didn't come to work the next day because she couldn't get out of bed due to lower back pain. She had not experienced back pain prior to August 11, 2011. She testified that in 2011,

I went for my routine physical and I told them that I was having pain in my lower back and they did an X-ray. I can't give you the exact date of when that was. I did not say that it was workers' comp at that point in time.

(P. 20).

She has had back pain since August 8, 2011, but "it wasn't as bad that I had to do anything, but then it's just gotten to a point now where I am in extreme pain" (id.). She was aware that she had a work-related back problem in August 2011.

Dr. Pilitsis was deposed on May 11, 2015, and testified that she saw claimant once, on August 6, 2014, and had recommended that she obtain an MRI. Dr. Pilitsis subsequently reviewed the results of an MRI of claimant's lower back which showed degenerative disc disease at L5-S1, which was consistent with her symptoms. Dr. Pilitsis was asked to assume that claimant had testified that "around August of 2011, she [was] performing her job as usual when she went down and felt her back go and since then, she's been able to continue working and initially the pain has been tolerable but throughout the course of the last three years, the pain has been progressively worsening" (Deposition, Dr. Pilitsis, 5/11/15, p. 8). When asked, based on this assumed history, "whether the repetitive physical nature" of claimant's job caused her current low back condition, Dr. Pilitsis responded,

I can't say for sure what happened in her case, but I suspect that she had a predilection for having back issues and the repetitive lifting and bending and motions did not help the matter. I think it exacerbated the condition.

(P. 8-9).

On cross-examination, Dr. Pilitsis testified that claimant had told her that she had been experiencing symptoms since August 2011. Dr. Pilitsis was asked to assume that claimant had testified that "while she was working on August 8 of 2011, she bent over and turned and suffered sharp pain in her low back, which radiated to her hip" and was asked "whether that incidence was the trigger of her back problems that you saw her for?" (p. 10). Dr. Pilitsis responded,

As far as I know, she had already had back pain for three years and assuming that she did not have back pain or wasn't seen before her back pain and that then she had this incident, developed back pain after that, it stands to reason that that was the initiating factor.

(Id.).

In a reserved decision filed June 10, 2015, the WCLJ established the claim for an occupational low back injury and set the date of disablement as May 31, 2014, the date of her first treatment at urgent care.

The carrier requested administrative review of the WCLJ decision, arguing that this is a claim based on accidental injury which occurred on August 8, 2011, and which is time barred pursuant to WCL § 28. Claimant filed a rebuttal asking that the WCLJ decision be affirmed.

LEGAL ANALYSIS

A claim for occupational disease "is restricted to medical conditions resulting from the ordinary and generally recognized risks incident to a particular occupation" (Matter of Mack v County of Rockland, 71 NY2d 1008 [1988]). "'An occupational disease is a condition which derives from the very nature of the employment and not from an environmental condition specific to the place of work' (Matter of Bates v Marine Midland Bank, 256 AD2d 948 [1998]). To establish an occupational disease, a claimant must demonstrate a 'recognizable link' between the alleged condition and a 'distinctive feature' of his or her work (Matter of Winn v Hudson Val. Equine Ctr., 215 AD2d 920 [1995])" (Matter of Ball v New Era Cap Co., Inc., 21 AD3d 618 [2005] [additional citations omitted]).

For the reasons set forth by the WCLJ in his June 10, 2015, reserved decision, the claim should be established for an occupational disease with a date of disablement set as May 31, 2014 (first medical report indicating back injury was causally related). In the reserved decision, the WCLJ noted that the claim could be established as either an accidental injury or as an occupational disease, with the two theories not mutually exclusive. Here, the record reflects that the claimant continued working after the August 8, 2011, occurrence until her back condition became intolerable and she was compelled to treat for it. The claimant continued to work despite the pain due to her job duties. The record supports, and the claimant's testimony supports, the establishment of this claim as an occupational disease claim for the back, with the date of disablement of May 31, 2014, an appropriate date that permits the claim to be established without being time-barred by the provisions of WCL § 28.

Therefore, the Full Board finds that the preponderance of the evidence supports establishing this claim for an occupational low back injury with a date of disablement of May 31, 2014.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed June 10, 2015, is AFFIRMED. No further action is planned by the Board at this time.