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Case # G0620315
Date of Accident: 06/18/2012
District Office: NYC
Employer: Con Edison
Carrier: Consolidated Edison Co of NY
Carrier ID No.: W373005
Carrier Case No.: B278401739000101784
Date of Filing of Decision: 12/19/2017
Claimant's Attorney: Laurence Shaw, Esq.
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on November 21, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed March 7, 2017.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether claimant's low back surgery should be authorized, and;
  2. whether the claimant made a material misrepresentation in violation of Workers' Compensation Law (WCL) 114-a.

The Workers' Compensation Law Judge (WCLJ) concluded that the claimant's lumbar spine laminectomy decompression surgery is medically necessary and should be authorized.

The Board Panel majority modified the WCLJ decision to deny the claimant's request for surgery, and found that the claimant violated WCL 114-a and is subject to mandatory and discretionary penalties.

The dissenting Board Panel member determined that the claimant did not violate WCL 114-a, and would authorize the July 15, 2016, surgery.

The claimant filed an application for Mandatory Full Board Review on March 28, 2017, arguing that the record supported a finding that low back surgery was causally related and should be authorized and that he did not violate WCL 114-a, as he had previously been forthcoming about his prior injuries.

The self-insured employer (SIE) filed a rebuttal on April 17, 2017, arguing that there is no substantial evidence in the record to support the claim for surgery related to the claimant's June 18, 2012, accident, and that the claimant has made a material misrepresentation in violation of WCL 114-a.

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

FACTS

The claimant filed a C-3 (Employee Claim) with the Board on June 26, 2012, in which he alleged that he sustained work-related injuries to his neck and left arm on June 18, 2012, as a result of lifting rocks for the employer. In the C-3, the claimant disclosed the existence of a February 16, 2004, motor vehicle accident in which he sustained injuries to the same body parts.

The initial medical report filed in this claim, a C-4 (Doctor's Initial Report) by Dr. Hilton based on a June 25, 2012, examination, notes that claimant injured his back in the June 18, 2012, accident.

In an administrative decision filed on June 14, 2013, the instant claim was established for work-related injuries to the claimant's neck and back. However, on June 14, 2013, the SIE filed an objection to the June 14, 2013, administrative decision, noting that it filed a C-669 accepting the case without prejudice for an exacerbation of a pre-existing back injury only. The claimant's attorney filed an objection to the administrative decision on June 19, 2013, objecting to the failure to award an attorney's fee.

In an administrative decision filed on June 24, 2013, the parties were informed by the Board that the action set forth in the June 14, 2013, administrative decision would not be taken.

In a decision filed on August 5, 2013, a WCLJ found prima facie medical evidence for the neck and the back. The SIE withdrew its C-669 and raised all C-7 issues, while also raising the issue of apportionment. The decision notes that the SIE is to file a C-7 and that this case is to travel with WCB Case Number 30401909.

WCB Case Number 30401909 was indexed based on the claimant's filing of a C-3 (Employee Claim for Compensation) with the Board on February 23, 2014, alleging that he sustained work-related back, neck and left wrist injuries as a result of a motor vehicle accident sustained on February 16, 2004. In a decision filed on September 7, 2004, prima facie medical evidence was found for the head, neck and back. The claimant failed to prosecute the claim thereafter. As a result of this accident, the claimant filed a third party action, which was ultimately settled without the consent of the SIE. In a decision filed on May 27, 2010, the Board concluded that the claimant failed to produce evidence of a nunc pro tunc order that had been served on all parties and directed no further action. That decision was affirmed by a Board Panel decision filed on December 14, 2010.

Following an independent medical examination of the claimant on September 4, 2013, an IME-4 (Practitioner's Report of Independent Medical Examination) was filed with the Board on September 12, 2013. In that report, the SIE's consultant, Dr. Mills, opined that the claimant's June 18, 2012, neck and back injuries are causally related to his employment, but that the claimant presently has no disability. The IME-4 report indicates that the claimant provided a history of sustaining a prior accident on February 14, 2004, in which he sustained injuries to his back, neck and left wrist. Attached to the IME-4 is a claimant history form indicating that he previously had a work-related motor vehicle accident on February 14, 2004.

At a hearing on September 17, 2013, the claimant testified concerning the events that transpired on June 18, 2012, while working for the employer. On cross-examination, the claimant admitted that he was involved in a 2004 work-related motor vehicle accident, and sustained neck, back and left hand injuries as a result. He also injured his left shoulder and received treatment. He also testified that it had been years since he treated for the neck and back prior to the June 18, 2012, accident, and that he thought he stopped treating in 2007.

In a decision filed on September 20, 2013, for the September 17, 2013, hearing, the WCLJ determined that the claimant had a work-related aggravation of pre-existing neck and back injuries, and issued awards to the claimant from June 19, 2012, to June 30, 2012, at the temporary total disability rate of $724.18, and held in abeyance awards from June 30, 2012, to July 27, 2012.

Following an independent medical examination of the claimant on October 15, 2015, an IME-4 was filed with the Board on October 26, 2015. In that report, the SIE's consultant, Dr. Renzoni, opined that the claimant has reached maximum medical improvement, and that there is no need for lumbar surgery. Dr. Renzoni specifically noted that "apportionment does not apply since prior injuries were to the shoulder and a knee and this accident involves injuries to the neck and back." The IME-4 report indicates that the claimant provided a history of sustaining a prior accident on February 14, 2014, in which he sustained a shoulder injury, and a July 2005 knee injury.

The claimant's treating physician, Dr. Brisson, filed several medical reports with the Board in which he opined that the claimant sustained causally related lumbar and cervical spine injuries as a result of a work-related accident on June 18, 2012. In a medical report for a March 25, 2015, office visit (doc. #243616089, p. 3-6), Dr. Brisson recommended surgery based on his diagnosis of lumbar radiculopathy on the left and lumbar disc herniation with myelopathy at L5-S1. The March 25, 2015, medical report indicates that the claimant did not provide any past medical history to Dr. Brisson.

In an addendum report filed November 12, 2015, Dr. Renzoni opined that the proposed lumbar surgery was not causally related to the accident of June 18, 2012, noting that the large left sided disc herniation present at the time of claimant's March 27, 2015, MRI was not present in an earlier MRI performed on March 28, 2013.

In a decision filed on March 10, 2016, the WCLJ directed the depositions of Drs. Renzoni and Brisson, and the testimony of the claimant on the issue of causally related need for surgery.

Dr. Brisson testified at a deposition on May 4, 2016, that he is a Board certified orthopedic surgeon, and that he has requested laminectomy decompression left level L5-S1 surgery on the claimant based on the medical history provided to him by the claimant and his physical examinations of the claimant. The claimant has disc herniation with associated radiculopathy, which was confirmed by MRIs done in 2013 and 2015. Dr. Brisson disagrees with Dr. Renzoni's opinion that the claimant's need for surgery is causally related to a snow shoveling incident on February 12, 2013. Dr. Brisson confirmed that the need for surgery is causally related to the claimant's June 18, 2012, work-related injury and that the claimant is presently "very symptomatic" and experiencing "great difficulties." Dr. Brisson is also requesting post-surgery physical therapy. On re-direct, Dr. Brisson indicated that if the claimant was asymptomatic for an eight-year period prior to the 2012 work-related injury and worked full time without treatment, there would be no apportionment to a 2004 injury. Dr. Brisson confirmed that he did note in his report the claimant's February 2013 shoveling incident, but still is of the opinion that the surgery is causally related to the 2012 work-related injury.

On cross-examination, Dr. Brisson testified that the history in his March 25, 2015, report is based on a verbal history provided to him by the claimant, as well as intake sheets completed by the claimant. He was not made aware by the claimant that he had a pre-existing workers' compensation case involving an injury to the back. He also was not informed by the claimant that he had a subsequent back injury in February 2013. Dr. Brisson conceded that without a complete and accurate medical history, an opinion on causal relationship could be impacted. Based on the information provided to him concerning the claimant's prior and subsequent back injuries, Dr. Brisson could not formulate an opinion with respect to the causal relationship of the at issue back surgery. The 2013 MRI report is "a little different" when compared to the 2015 MRI report as the latter shows a disc herniation. On re-cross, Dr. Brisson testified that he could not recall why he issued a May 22, 2015, addendum report. He testified that a disc bulge can progress to a disc herniation without physical trauma.

Dr. Renzoni testified at a deposition held on May 5, 2016, that he is a Board certified orthopedic surgeon, that he examined the claimant on October 15, 2015, and prepared a report following that examination and an addendum on November 3, 2015. He was provided with a history of a back injury sustained on June 18, 2012, while the claimant was lifting heavy rocks at work. Dr. Renzoni was made aware subsequent to his October 14, 2015, examination of the claimant that he had a 2004 work-related cervical and lumbar spine injury and a subsequent low back injury while shoveling snow on February 12, 2013. The claimant's physical examination was "basically normal." The claimant had a resolved cervical and lumbar sprain. Dr. Renzoni opined that the claimant did not require the requested surgery. With respect to apportionment, Dr. Renzoni is of the opinion that the claimant's June 18, 2012, work-related injury did not cause the disc herniation, which was not present on the 2013 MRI, but was present in the 2015 MRI. On re-direct, Dr. Renzoni testified that since there was no large disc herniation present between the June 18, 2012, work-related accident and the August 2013 MRI, and the large disc herniation did not appear until the 2015 MRI was completed, that the disc herniation was not causally related to the June 18, 2012, accident.

On cross-examination, Dr. Renzoni testified that in light of the complaints of pain and difficulties with activities of daily living, that surgery may be appropriate for the claimant if further conservative treatment fails. Dr. Renzoni was aware that the claimant had returned to work prior to his June 18, 2012, work-related injury, but could not answer questions concerning whether he worked in the eight years following his 2004 work-related injury. Dr. Renzoni conceded that it is hard to state whether the 2013 shoveling incident constituted a new accident or was simply an exacerbation of the 2012 work-related injury. He felt that the claimant, who had degenerative changes of the lumbar spine, could possibly experience exacerbations with any real heavy work. The 2013 MRI did not show any herniations; the large left sided herniation did not appear until the 2015 MRI. Other than the 2013 incident when the claimant shoveled snow, there was no report of any other injuries or exacerbations between the two MRIs. Dr. Renzoni felt that if the 2012 work-related injury caused the disc herniation, it would have showed up by the time the 2013 MRI was completed. Dr. Renzoni conceded that he did not look at the MRI film, but instead relied on the resulting MRI report.

At a hearing on May 9, 2016, the claimant testified on the issue of the need for surgery. Claimant testified that prior to his June 18, 2012, work-related accident, he was involved in a motor vehicle accident in February 2004 that resulted in his filing of a workers' compensation claim. When asked what injuries he sustained in the 2004 accident, he responded that he injured his left shoulder, left wrist and hand. When asked whether he injured his neck in the 2004 accident, he responded that the "injury from my shoulder stemmed from my neck, yes" (p. 3). He missed two to three weeks from work following this accident, when he returned to work in full duty. The claimant testified to two separate "flare-ups" of back pain following the 2012 work-related injury, and indicted that he experiences these flare-ups once every couple of weeks. On re-direct, the claimant testified that he returned to work in light duty status on September 28, 2015, and still wishes to undergo back surgery.

On cross-examination, the claimant testified that he filed a third party civil suit as a result of "shoulder, hand and neck" injuries sustained in the 2004 accident. The claimant denied sustaining a back injury in 2004. The claimant did not recall any back treatment with a Dr. Diab, testifying that he must have treated him for the upper back or neck. He denied that Dr. Diab kept him in restricted duty until 2007, indicating that he returned to work in full duty status a couple of weeks post-accident. He testified that he did not recall being on restricted duty and that the employer has no light duty. He saw Dr. Kosterich in 2008 for neck issues and after the 2012 accident. He stopped seeing Dr. Kosterich in 2013, when he began to see Dr. Manfredi, a chiropractor. When asked if he provided Dr. Brisson with a history of his prior 2004 work-related accident involving the neck or back, the claimant testified that he did not, as they were concerned with his lower back at that time. The claimant indicated that he did not inform the SIE's consultant, Dr. Renzoni, of his 2004 back and neck injuries as he was only asked about his lower back.

At the conclusion of the May 9, 2016, hearing, both parties were directed to submit written summations within 30 days. However, the claimant's attorney elected to provide an oral summation on the record, arguing that the WCLJ should authorize the claimant's back surgery per the medical opinion of Dr. Brisson and the concession made by Dr. Renzoni. The attorney for the SIE stated that the claimant has not provided an accurate history regarding his prior injury and that there may be a question of a WCL 114-a violation, all of which will be set forth in a detailed written summation.

In a written summation filed with the Board on May 12, 2016, the SIE contended that Dr. Brisson was provided with no history of a prior back injury, and that if such a pre-existing injury had occurred, he would not be able to state that the surgery is causally related. Dr. Renzoni also was not provided a history of the claimant previously injuring his back when claimant completed questionnaires and provided him with a verbal history. The claimant's testimony further indicates that he denied ever having previously sustained prior back injuries. However, all of the C-4s filed in WCB Case Number 30401909 reveal that the claimant treated extensively for a low back injury following the February 16, 2004, motor vehicle accident. The SIE argues that the claimant misrepresented the truth in violation of WCL 114-a and should be disqualified from receiving any indemnity benefits. The SIE further contends that claimant's back surgery should not be authorized and no compensable lost time should be found as Dr. Brisson's causal relationship opinion was undermined by the history provided to him by the claimant. The SIE also argues that claimant's condition between 2012 and 2015 was due to an exacerbation of his 2004 work-related injury, not his 2012 work-related injury.

In a reserve decision filed on July 15, 2016, the WCLJ credited the opinion of Dr. Brisson that the lumbar spine laminectomy decompression surgery is medically necessary and should be authorized. The WCLJ concluded that claimant's continuing severe back pain and failed conservative treatment support such a finding. The WCLJ did not address the issue raised by the SIE at the close of the hearing, and in its subsequently filed written summation, that the claimant violated WCL 114-a.

The SIE requested administrative review.

LEGAL ANALYSIS

Authorization for Surgery

Dr. Renzoni received a complete and accurate history from the claimant, including the occurrence of the 2004 work-related injury and the 2013 snow shoveling incident, and opined that the requested surgery was not causally related. Dr. Renzoni explained that the 2013 MRI report did not reveal a disc herniation that claimant alleges occurred in 2012, and did not show up until after the 2013 snow shoveling incident, on the 2015 MRI report. Dr. Brisson was not provided with a history of the 2004 work-related injury, placing in doubt his conclusion that the surgery is causally related to the 2012 work-related accident. Dr. Brisson indicated on cross-examination that without a complete and accurate medical history, he could not formulate an opinion with respect to the causal relationship of the back surgery.

Therefore, the Full Board finds that the matter should be returned to the trial calendar for claimant to produce clarifying medical evidence on the issue of whether his current need for back surgery is causally related to his June 18, 2012, work-related accident.

WCL 114-a Violation

WCL 114-a(1) provides that:

If for the purpose of obtaining compensation pursuant to section fifteen of this chapter, 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. Any penalty monies shall be paid into the state treasury.

Here, claimant disclosed back, neck and left wrist injuries sustained in a prior 2004 motor vehicle accident in the C-3 he filed with the Board. The workers' compensation case that was filed as a result (WCB # 30401909) traveled with this case as a result of the direction contained in the August 15, 2013, decision. In the September 20, 2013, decision, the instant claim was established for a work-related aggravation of pre-existing neck and back injuries sustained in the 2004 work-related motor vehicle accident. The claimant also disclosed the existence of his 2004 work-related motor vehicle accident to two IMEs retained by the SIE, Dr. Mills in 2013 and Dr. Renzoni in 2015. Claimant advised Dr. Mills that he injured his back, neck and left wrist in the 2004 accident. However, claimant advised Dr. Renzoni only that he had injured his shoulder in the 2004 accident, and did not advise Dr. Renzoni he had injured his back or neck.

The claimant failed to disclose the fact that he sustained a 2004 work-related back injury to his treating medical provider Dr. Brisson on several occasions. While the claimant argued at the May 9, 2016, hearing that the 2004 motor vehicle accident did not involve the back, this is directly contradicted by the claimant's prior testimony at the September 17, 2013, hearing, in which he clearly indicated that the 2004 motor vehicle accident involved injuries to the neck, back and left hand. Dr. Brisson testified that the claimant's disclosure of the 2004 motor vehicle accident was necessary in order to provide an accurate opinion on causal relationship.

While the claimant advised the SIE of his 2004 motor vehicle accident from the outset of this claim, and the SIE was clearly aware of the injuries claimant sustained in the accident, that knowledge on the part of the SIE did not relieve claimant of the obligation to provide an accurate history to his treating physician and the carrier's consultant when they inquired. Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant violated WCL 114-a.

WCL 114-a Penalties

It is not clear that claimant received any benefits as the direct result of his material misstatements, and therefore a mandatory penalty is not warranted. Although claimant failed to provide a complete and accurate history to Dr. Brisson or Dr. Renzoni, he was forthcoming about his 2004 accident in the C-3 he filed with the Board and while testifying before the Board. Therefore, the Full Board finds that total permanent disqualification from receiving further lost wage benefits is not warranted in this case. However, the Full Board hereby assesses a discretionary penalty of $2,000.00 which shall act as an offset against any future lost wage benefits to which claimant may found to be entitled.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed on July 15, 2016, is MODIFIED to rescind the authorization of claimant's back surgery, without prejudice, and to return the case to the trial calendar for claimant to produce clarifying medical evidence on the issue of whether his current need for back surgery is causally related to his June 18, 2012, work-related accident; to find that claimant violated WCL 114-a, and to assess a discretionary penalty of $2,000.00 pursuant to WCL 114-a, which shall act as an offset against any future lost wage benefits to which claimant may be found to be entitled. The case is continued.