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Workers' Compensation Board

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Case # G0858413
Date of Accident: 07/22/2014
District Office: Buffalo
Employer: Mayer Bros Apple Products Inc
Carrier: Great American Alliance Ins Co
Carrier ID No.: W020507
Carrier Case No.: 564611318
Date of Filing of Decision: 04/13/2017
Claimant's Attorney: Gielowski, Federice & Caligiuri, LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on March 21, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed May 19, 2016.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether this claim should be amended to include the neck; and,
  2. whether a discretionary penalty of permanent disqualification from indemnity benefits should be imposed pursuant to Workers' Compensation Law (WCL) § 114-a.

The Workers' Compensation Law Judge (WCLJ) amended the claim to include a neck injury, found that the claimant violated WCL § 114-a and assessed a mandatory penalty of forfeiture of indemnity benefits from July 10, 2015, until December 31, 2015, pursuant to WCL § 114-a. The WCLJ did not impose a discretionary penalty pursuant to WCL § 114-a.

The Board Panel majority affirmed the WCLJ decision insofar as it amended the claim to include the neck, found that claimant violated WCL § 114-a, and declined to impose a discretionary penalty pursuant to WCL § 114-a. The Board Panel modified the WCLJ decision to find that the mandatory forfeiture assessed pursuant to WCL § 114-a began as of January 19, 2015.

The dissenting Board Panel member would find that claimant's misrepresentations were egregious and warrant the assessment of a discretionary penalty of permanent disqualification from further indemnity benefits.

The carrier filed an application for Mandatory Full Board Review on June 20, 2016, arguing that the Board Panel erred in failing to assess a discretionary penalty of permanent disqualification as the claimant's misrepresentations were egregious. The carrier further contends that the claim for the neck should be disallowed.

The claimant filed an untimely rebuttal on July 22, 2016.

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

FACTS

The claimant alleges multiple injuries resulting from an accident on July 22, 2014, when she fell at work.

A July 23, 2014, report from the Eastern Niagara Hospital Emergency Department notes that claimant reported injuries to her head, neck, pelvis, and upper and lower extremity.

In a C-4 (Doctor's Initial Report) based on a July 24, 2014, examination, claimant's treating physician, Dr. Libby, noted that claimant "fell off dock at work, onto concrete, hitting her head, left shoulder and elbow. Bigger complaint is increased neck pain. 10+ on pain scale."

At a hearing on December 17, 2014, the WCLJ established the claim for the right shoulder. The WCLJ found prima facie medical evidence for the head, neck and right knee, and the claimant also claimed injuries to her low back, both elbows and right thumb. The claimant testified that she previously treated for a neck injury in 1993 with Dr. Randle while living in Georgia. When asked the last time that she treated for the neck injury, the claimant responded "years." Claimant indicated that she may have seen Dr. Libby in New York regarding her neck injury, and underwent x-rays. She denied treating with any pain management for her neck outside of her treatment with Dr. Libby. Claimant also denied treatment to any of the sites raised at the hearing. The findings and awards made the December 17, 2014, hearing are reflected in a decision filed December 22, 2014.

On January 26, 2015, claimant was examined by the carrier's consultant, Dr. Luzi. In his report, Dr. Luzi opined that the claimant's cervical condition was causally related, assuming the history provided by the claimant of being asymptomatic for 21 years following her 1993 neck surgery was true.

In a decision filed on March 11, 2015, the case was amended to include the neck, but the finding was made without prejudice.

In an addendum report dated March 30, 2015, Dr. Luzi "completely changed" his opinion with respect to causal relationship of the claimant's neck, opining that claimant's neck condition is not causally related based on additional medical records provided to him indicating that she received medical treatment for her pre-existing neck condition from 2003 through April 2014.

The carrier filed an RFA-2 (Request for Further Action by Carrier/Employer) on May 22, 2015, requesting a hearing to develop the record on the issue of casually related neck and fraud.

At a hearing held on July 10, 2015, the claimant testified that she was involved in a motor vehicle accident in 1992 or 1993 while living in Georgia. She had a head on collision with another driver, and received treatment that day in the emergency room for an injury to her neck. The claimant had neck surgery on September 21, 1993, performed by Dr. Randle. The claimant moved back to New York in 2001 and was not treating for her neck issues at that time. The claimant sustained a work-related low back injury in 2004 that did not ultimately require surgery. When asked if she had any issues with her neck between 1992 and 2014, the claimant responded that "it really didn't bother me for a good 15 years, and then it started bothering me." The claimant testified that between 1993 and 2014 she did not take any medications due to her neck condition. The claimant was prescribed oxycodone and fentanyl and physical therapy for her back during that time frame. The claimant did not miss any time from work, or have to modify her work duties, between 2009 and 2014 due to her neck injury. The claimant admitted to seeing Dr. Yu due to her neck problems in 2012. Claimant was referred to Dr. Yu by her primary care physician, Dr. Libby. Dr. Yu did not perform any surgery on the claimant. On July 22, 2014, the claimant lost her footing at work and fell four to five feet backwards on to her shoulder blades, injuring her neck. She began to treat with Dr. Castiglia concerning her right shoulder and neck. The onset of pain in the claimant's neck was gradual and took about a month to develop. She went to the emergency room at Newfane Hospital. After attempting conservative treatment, the claimant underwent neck fusion surgery on April 17, 2015. Claimant testified that the surgery was on the C5-C6 level, which was different from the level that she had surgery on in 1993. She was not previously informed of the need to have surgery at this level. She could not recall the prior discussions she had with Dr. Yu about neck surgery. The claimant refuted that part of Dr. Luzi's report indicating that she had back surgery in 2004. There were other errors in Dr. Luzi's report concerning her age, the individual that accompanied her to the examination, the alleged loss of consciousness when she was injured, medications she was on and previous hospitals at which she was treated.

On re-direct, the claimant testified that she disclosed her 1993 neck surgery on the IME's intake form, and that claimant was of the opinion that "treatment" was defined as getting testing done and not necessarily just speaking to the doctor. She has had no epidurals, surgery, chiropractic treatment or physical therapy to her neck between 1993 and 2014. Pain medications were prescribed only for her back.

On cross-examination, the claimant confirmed her prior testimony that she treated with Drs. Randle and Gillespie in Georgia following her 1992 motor vehicle accident and that it was years since she lasted treated for her neck injury. The claimant completed a patient history form at Dr. Luzi's office, in which she indicated that she had not had any prior problems with her neck, electing to indicate only that she had prior back and leg problems. Claimant was questioned concerning reports of treatment she received from Dr. Libby prior to her July 22, 2014, work-related accident. The claimant confirmed that she began treating with Dr. Libby on July 17, 2002, but does not recall at that time registering a complaint about neck pain. The claimant conceded that she presented to Dr. Libby on March 18, 2003, with persistent headaches that were possibly related to spinal stenosis. In June of 2003, the claimant treated with Dr. Libby, who noted additional complaints of neck pain. The claimant admitted to complaining of cervical pain of 8 on a scale of 1 to 10 on December 15, 2005. The claimant was asked about a notation in the report from an office visit in which Dr. Libby indicated that he was prescribing Celebrex and renewing a prescription for Hydrocodone. The claimant testified that these prescriptions were for her back. The claimant conceded that at a May 10, 2007, office visit, she complained of neck pain interfering with sleep, and indicated that she was taking six to seven Hydrocodone per day. The claimant conceded that she was continued on Hydrocodone and started on a Fentanyl patch due to her complaints. The carrier's attorney noted that claimant was given an out-of-work slip from May 29, 2007, to May 31, 2007, but the claimant contends that this was issued due to her back. The claimant conceded that she made complaints of neck pain at the next visit with Dr. Libby on May 31, 2007, and was continued on Hydrocodone and a Duragesic patch. The claimant further conceded that she made neck and back complaints to Dr. Libby on August 30, 2007, and was diagnosed with cervical herniations. On June 24, 2008, the claimant made additional complaints to Dr. Libby of neck pain. She made additional complaints of neck pain to Dr. Libby on February 5, 2009, and May 10, 2010. The claimant conceded that she was prescribed Nucynta for her neck pain on March 22, 2011. The claimant agreed that on that date she may have indicated neck pain in the range of 11 to 12 on a scale of 1-10. The claimant returned to Dr. Libby on April 2, 2011, and May 4, 2011, complaining of neck pain. The prescribed medications referenced in the report from the May 4, 2011, office visit were for her back, not her neck. The claimant conceded that she treated with Dr. Libby on November 2, 2011, due to neck aches. The claimant admitted that she treated with Dr. Libby in March of 2012 due to severe headaches that developed due to cervical stenosis. On May 22, 2012, the claimant made several complaints to Dr. Libby, including neck pain. On May 30, 2012, the claimant complained to Dr. Libby of a lump on her neck. At this time, she was diagnosed with C2 through T1 disc herniations. Claimant did not recall being placed on Amitriptyline by Dr. Libby for severe cervical pain. The claimant conceded that she scheduled cervical spine surgery on August 27, 2012, but subsequently cancelled it. The claimant returned to Dr. Libby on June 10, 2013, complaining of neck pain. At office visits on November 21, 2013, and December 23, 2013, she discussed cervical myelopathy with Dr. Libby. The claimant denied complaining of neck pain on February 17, 2014. The claimant did recall being sent by Dr. Libby for a neck x-ray on March 17, 2014, and that the results of the x-ray were discussed at an office visit on April 14, 2014. The x-rays showed that the claimant had cervical arthritis and was in need of a cervical MRI. The claimant conceded that she has consistently been treating for complaints relating to her cervical spine since starting treatment with Dr. Libby. She attended an IME with Dr. Luzi on January 26, 2015, and informed him that she had not had any treatment for her cervical spine.

In a decision filed on July 13, 2015, for a hearing on June 18, 2015, the parties were directed to depose claimant's Dr. Libby, Dr. Castiglia and Dr. Luzi.

At a deposition on September 1, 2015, Dr. Libby testified that she is the claimant's family physician and has treated the claimant since July 10, 2002. Dr. Libby saw the claimant on July 24, 2014, following her July 22, 2014, work-related injury. Dr. Libby was provided with a history of claimant falling 4 to 5 feet from a dock on her back, injuring her head, left shoulder and elbow. The claimant's biggest complaint following the accident was upper neck pain. Claimant was placed on light duty until July 29, 2014. Dr. Libby next saw the claimant for her work-related injuries on August 27, 2014. She last saw the claimant for these work-related injuries on August 4, 2015. Dr. Libby could not specifically recall from her notes whether she treated the claimant for her neck condition; she was only able to find notes from 2014 indicating that the claimant had neck spasms. Dr. Libby is of the opinion that the July 22, 2014, incident "aggravated and effected" a prior neck condition. On re-direct, Dr. Libby confirmed that the claimant was working full time between 2003 and 2014 and did not undergo any surgeries during that time.

On cross-examination, Dr. Libby was asked to refer to a medical report from her March 18, 2003, treatment of the claimant, in which she diagnosed cervical stenosis. Dr. Libby conceded that she recommended chiropractic treatment for this condition. Dr. Libby was asked to refer to a medical report from her March 31, 2003, treatment of the claimant that indicated that the chiropractic treatment was working. Dr. Libby also made a referral to a neurologist due to claimant's headaches that she believes were brought about by her cervical stenosis. The claimant was on motrin and Flexoril specifically due to her neck condition. Dr. Libby was asked to refer to a medical report from her December 15, 2005, treatment of the claimant that indicated that she was given a sample of Celebrex and renewed her Hydrocodone prescription for her pain, arthritis and hand numbness related to her cervical condition. Dr. Libby was asked to refer to a medical report from her May 11, 2007, treatment of the claimant that indicated that claimant was treated for cervical radiculopathy. Dr. Libby felt at that visit that claimant's hand and finger numbness was related to her cervical spine condition. The claimant remained on Celebrex and Hydrocodone as of that visit. At an office visit on May 18, 2007, Dr. Libby ordered an MRI of the claimant's cervical spine in order to rule out disc herniation. Dr. Libby confirmed that her May 31, 2007, report indicates that disc herniation at multiple levels was detected on an MRI and claimant was referred for physical therapy and for cervical spine surgery as a result. Claimant was continued on Hydrocodone and removed from work due to her cervical spine complaints. Dr. Libby was asked to refer to a medical report from her July 5, 2007, treatment of the claimant in which she continued to complain of neck pain, but indicated that she was not interested in neck surgery. Dr. Libby was asked to refer to a medical report from her September 12, 2007, treatment of the claimant, and she confirmed that she continued to prescribe Hydrocodone specifically for claimant's neck condition. An October 4, 2007, report indicates that the claimant was taking Hydrocodone and Fentanyl for her neck and her low back. In 2011, the claimant was placed on Nucynta, but only for the lumbar spine. Dr. Libby's April 21, 2011, report noted that claimant complained of neck pain of 11 to 12 on a scale of 1 to 10. In a June 16, 2011, report Dr. Libby noted complaints of neck pain. In a November 30, 2011, report Dr. Libby noted complaints of neck pain and that cervical spine surgery was contemplated. In a report dated August 8, 2012, Dr. Libby noted that anterior cervical discectomy fusion (ACDF) surgery was scheduled for August 27, 2012, with Dr. Yu. On August 20, 2012, Dr. Libby was informed by Dr. Yu's office that the claimant cancelled surgery as she was too busy. Dr. Libby was asked to refer to a medical report from her May 30, 2012, treatment of the claimant which indicated that the claimant continued to complain of neck pain at that time and indicated she would resume taking Hydrocodone. Dr. Libby was unsure if this was for her cervical spine or lumbar spine. Regarding her June 13, 2012, report, Dr. Libby testified that the claimant was placed on Opana for her cervical spine complaints. In a March 17, 2014, report, the claimant complained of left cervical pain radiating into her left upper extremity, and Dr. Libby ordered a neck x-ray. Dr. Libby conceded based on her medical file of the claimant's treatment between 2003 and 2014, that she had substantial treatment to her neck before the July 22, 2014, work-related injury. Dr. Libby referred the claimant to Dr. Castiglia, who also recommended the ACDF surgery that was ultimately done on April 17, 2015. Dr. Libby agreed that Dr. Yu was of the opinion that the claimant needed the ACDF surgery before her work-related injury.

At a deposition on September 2, 2015, Dr. Castiglia testified that the claimant was referred to him by Dr. Libby and he first treated the claimant in January of 2015. Dr. Castiglia recommended that the claimant undergo a C5-6 anterior cervical discectomy and fusion, and he performed this surgery on the claimant on April 17, 2015. He last saw the claimant on July 15, 2015, while she was convalescing from her surgery. The claimant provided a history of a work-related fall that resulted in a neck injury. Claimant advised him of her prior neck surgery in 1993 following a motor vehicle accident. However, the claimant informed him that she had a full recovery from that surgery, was able to return to work and had no issues concerning her neck until her work-related injury in 2014. Dr. Castiglia opined that claimant's July 2014 work-related accident caused a cervical disc herniation which necessitated the ACDF surgery. Dr. Castiglia is of the opinion that claimant's current injury is not an aggravation of her neck injury from over 20 years ago. The claimant disclosed on a questionnaire that she had the surgery in 1993, but the questionnaire did not ask if she had any subsequent related treatment. He did not speak with Dr. Libby about the claimant's treatments leading up to the referral. Since the claimant was able to function for 20 years following the initial neck surgery, and work full time, Dr. Castiglia felt that his opinion on causal relationship would not change even if he was informed of treatment with Dr. Libby for her neck during that 20 year period. On re-direct, Dr. Castiglia testified that if the claimant was able to work up until the point where she fell, and since that time her pain has caused her to not be able to work, then that is the causal event that precipitated her symptoms.

On cross-examination, Dr. Castiglia testified that he did not review any of the claimant's prior medical records. His history of claimant's condition and treatment was based on what was recounted by the claimant. Dr. Castiglia reiterated that when he asked the claimant about any prior neck injuries, she volunteered that she had C6-7 cervical discectomy surgery in 1993. It was the doctor's understanding that the claimant had no further symptomology until 2014. He was unaware of any symptomology between 2003 and 2014. Dr. Castiglia's review of the claimant's MRI revealed a disc herniation at C5-6 displacing the cord and causing right side foraminal narrowing, some degenerative changes at C4-5 and a healed cervical fusion at C6-7. He recommended a C5-6 cervical fusion in light of the MRI results and failed extensive conservative treatment between July 2014 and January 2015. Dr. Castiglia confirmed that his opinion on causal relationship was formulated based on review of the December 2014 MRI, his January 26, 2014, physical examination of the claimant and the history that she provided. When confronted with a Mach 1, 2011, MRI report, Dr. Castiglia testified that he could not comment as to whether the claimant had disc herniations and cord impingement prior to her 2014 work-related injury without visualizing the MRI. He indicated that his opinion with respect to causal relationship wouldn't necessarily change as patients can have anatomical changes without symptoms, which can be triggered by a trauma. Dr. Castiglia was asked about a July 31, 2012, report of Dr. Yu, which indicated that claimant's cervical spine condition required surgery, which was scheduled by the doctor for August 27, 2012. He testified that this report did not change his opinion as the surgery did not occur and claimant must have improved and was able to function until the most recent surgery which was necessitated by her fall. He confirmed that the claimant did not disclose any of these symptoms or treatment, and that she only disclosed the surgery in 1993 that was necessitated by a motor vehicle accident. Dr. Castiglia was unable to answer hypothetical questions concerning whether his causal relationship opinion would change if he discovered that the claimant treated for her neck injury in close proximity to the date of her work-related injury.

In a reserved decision filed on October 23, 2015, the WCLJ amended the claim to include an injury to the claimant's neck based on the testimony of Dr. Castiglia. The WCLJ additionally found that the claimant violated WCL § 114-a(1) when she testified that she had not received medical treatment for her neck for "years" based on the fact that claimant had treatment for her neck within months of the July 22, 2014, accident. The WCLJ assessed a penalty of forfeiture of indemnity benefits from July 10, 2015, to December 31, 2015.

The carrier requested administrative review of the WCLJ decision, arguing that the claim for the neck should be disallowed, that a mandatory penalty be assessed pursuant to WCL § 114-a(1) disqualifying claimant from receiving benefits from January 19, 2015, to July 10, 2015, and that a discretionary penalty of permanent disqualification be assessed.

LEGAL ANALYSIS

Neck Injury

"It is well settled that where causally related injuries from a claimant's employment precipitate, aggravate or accelerate a preexisting infirmity or disease, the resulting disability is compensable" (Matter of Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129 [1994] [citations omitted]).

The record as developed indicates that the claimant was symptomatic with respect to her neck condition in the years preceding her July 22, 2014, fall at work. Dr. Libby provided a detailed history of the treatment the claimant received from 2002-2014 for her neck, the neck complaints registered at each office visit and the medications she was prescribed as a result. However, the record also supports a conclusion that the claimant was able to effectively perform her job and worked continuously in full duty status despite the symptomatic nature of her neck condition. It wasn't until the July 22, 2014, fall at work that the claimant was unable to work due to her neck condition and had the ACDF surgery. Dr. Libby credibly testified that the July 22, 2014, incident "aggravated and effected" the claimant's prior neck condition. The fall at work, therefore, created a disability that did not previously exist. As such, the amendment of this claim to include a causally related neck injury is supported by the evidence in the record.

WCL § 114-a(1) Penalties

"Workers' Compensation Law § 114-a(1) provides that a claimant will be disqualified from receiving compensation attributable to a false statement or representation of a material fact made for the purpose of obtaining wage replacement benefits. Any compensation already paid to a claimant which is directly attributable to a claimant's misrepresentations must be rescinded by the Board. The Board also has the discretionary authority to disqualify the claimant from receiving any future wage compensation benefits regardless of whether or not the claimant is subject to the mandatory penalty, even if the claimant has suffered a compensable injury. In addition, the Board may subject the claimant to an additional penalty up to the amount directly attributable to the false statement or representation" (Matter of Church v Arrow Elec., Inc., 69 AD3d 983 [2010] [internal quotation marks and citations omitted]).

Pursuant to the authority granted by WCL § 114-a(1), the Board has the discretion to disqualify a claimant from receiving any future wage replacement benefits. However, "the penalty imposed may not be disproportionate to the underlying misconduct (Matter of Harp v New York City Police Dept., 96 NY2d 892 [2001])" (Matter of Kodra v Mondelez Intl., Inc., 145 AD3d 1131 [2016]). In support of a determination that this onerous penalty is warranted, the Board must provide an explanation that the underlying deception was egregious or severe, or there was a lack of mitigating circumstances (Kodra, 145 AD3d 1131 [2016]).

Here, the claimant testified in December 2014 that she has not received treatment for her neck in "years." She also advised her treating physician, Dr. Castiglia, and the carrier's consultant, Dr. Luzi, that she had been asymptomatic following her 1993 cervical fusion. The record, however, reflects that the claimant received ongoing treatment for neck complaints during the period from March 2003 to April 2014, with the most recent treating having taken place just three months prior to the date of accident herein. Given the foregoing, the Full Board finds that claimant made a material misstatement in violation WCL § 114-a(1), and that a mandatory penalty of forfeiture of indemnity benefits from January 19, 2015 (first medical treatment following December 17, 2014, testimony), to December 31, 2015, is warranted based on the record. The Full Board further finds that the record does not support the imposition of a discretionary penalty given the fact that, upon testifying further on July 10, 2015, the claimant admitted that she had received ongoing treatment for her neck, but noted the primary issue during that period was an unrelated back condition.

Therefore, the Full Board finds, upon review of the record and based upon a preponderance of the evidence, that a mandatory penalty of forfeiture of indemnity benefits is warranted for the period from January 19, 2015, to December 31, 2015.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed on October 23, 2015, is MODIFIED to find that a mandatory penalty of forfeiture of indemnity benefits is hereby imposed for the period from January 19, 2015, to December 31, 2015. In all other respects, the decision is affirmed. No further action is planned by the Board at this time.