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Case # G1445748
Date of Accident: 09/21/2015
District Office: NYC
Employer: Logan Bus Co Inc
Carrier: Hartford Insurance Company
Carrier ID No.: W106751
Carrier Case No.: Y6903903C
Date of Filing of Decision: 11/20/2017
Claimant's Attorney: Ginarte O’Dwyer Gonzalez Gallardo & Winograd
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on October 17, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed January 27, 2017.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether this claim should be amended to include post-concussion syndrome; and,
  2. whether the evidence supports awards at the total rate after November 4, 2015.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim for post-concussion syndrome and made awards from November 4, 2015, to January 12, 2016, at the partial disability rate of $150.00 per week.

The Board Panel majority affirmed the WCLJ decision.

The dissenting Board Panel member would amend the claim to include post-concussion syndrome and would make awards from November 4, 2015, forward at the temporary total disability rate of $266.67 per week.

The claimant filed an application for Mandatory Full Board Review on February 27, 2017, arguing that the medical evidence supports amending the claim to include post-concussion syndrome and that the medical evidence supports awards after November 4, 2015, at a total disability rate.

The carrier filed a timely rebuttal on March 29, 2017, requesting that the decision of the WCLJ be affirmed. The carrier further argues that the issue of awards not be addressed by the Full Board because the case has been referred to the WCLJ to address that issue. In the alternative, if the Board addresses the issue of awards, the carrier requests that awards issued from November 4, 2015, forward not be modified, and that continuing awards be suspended for lack of up-to-date medical evidence.

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

FACTS

This case is established for facial trauma due to an assault which occurred while the claimant was working as a school bus monitor on September 21, 2015. The claimant was evaluated in an emergency room on the date of the assault and was treated for facial abrasions. The claimant denied loss of consciousness, dizziness, and headache, but complained of a slight pressure in the forehead area.

The claimant was examined by Dr. King, her primary care physician, on September 22, 2015, and provided a history of being punched in the face, chest, and shoulder by a student on her bus route. The claimant complained of headaches, facial tenderness, and shoulder discomfort. The doctor diagnosed the claimant with dizziness, head trauma, abnormal gait, and headache. Dr. King ordered a brain MRI for the claimant.

In an October 6, 2015, report, Dr. King indicated that the MRI results showed possible microvascular disease. The doctor diagnosed the claimant with headache and head trauma and referred her to a neurologist.

Dr. Sharma, the carrier's Board Certified neurologist, was deposed on April 27, 2016, and testified that he conducted an independent medical examination (IME) of the claimant on January 12, 2016. Claimant provided a history of being assaulted, punched in the face, and thrown to the bus floor, which resulted in two black eyes and multiple bruises. The claimant stated at the examination that she had ongoing pains in her neck and back, headaches, dizziness, blurred vision, and difficulties with daily living activities. Dr. Sharma reviewed the claimant's brain MRI and opined that it showed no signs of brain trauma. His examination of the claimant indicated depression and pain, related limitations in the range of motion of the cervical and lumbar spine, and no signs of injury to any part of the claimant's nervous system. The doctor diagnosed the claimant with contusions of the face, cervical and lumbar sprain, and a normal neurological examination. Dr. Sharma opined that the claimant did not sustain a cerebral contusion and does not have post-concussion syndrome. The diagnosis of concussion did not require an abnormal MRI or abnormal CT, but rather at the time of the blow, the person would be knocked unconscious or rendered incapable of functioning for a brief period and they would be left with symptoms such as headaches, dizziness, blurred vision, concentration problems, and difficulty sleeping. The symptoms of a concussion are similar to depression symptoms.

On cross-examination, Dr. Sharma testified that he examined the claimant once, approximately four months after the accident occurred. He did not review the claimant's hospital records or her treatment records from Dr. Golzad. The doctor opined that punches to the face or head alone can't cause a concussion. He performed a physical examination of the claimant which showed normal neurological function. There is no specific test to determine if a person had a concussion.

Dr. Golzad, the claimant's treating Board Certified neurologist, was deposed on May 6, 2016, and testified that he first examined the claimant on October 26, 2015, at which time she provided a history of being assaulted by a student while working on a bus. The claimant stated that since the date of the assault she had been experiencing headaches, dizziness, anxiety, insomnia, and memory and cognitive problems. He performed an evaluation of the claimant that revealed that she was very slow on her mental status testing, but was normal on her cranial nerves examination. The doctor opined that the claimant had post-concussion syndrome. The claimant's neuropsychological testing had abnormal results in her attention span and information processing speed, as well as lower scores in her memory recall, executive function, visual, spatial, and verbal function. He recommended cognitive therapy for the claimant, and Dr. Schweiger supervised and performed the cognitive therapy for the claimant. A person can have post-concussion syndrome without a loss of consciousness, but the condition is usually more severe if there has been a loss of consciousness. Dr. Golzad opined that the trauma that the claimant received is a cause of her diagnosed cognitive defects. The doctor opined that the claimant was totally disabled because she had daily severe headaches, she could not sleep, and she had cognitive problems.

On cross-examination, Dr. Golzad testified that the claimant did not lose consciousness at the time of the incident. He did not know if he reviewed the claimant's hospital records. The doctor opined that the confusion following a concussion usually only lasts for a few minutes and if the claimant's emergency room examination was done an hour or more after the event it would not be surprising if the claimant was clear and oriented. Dr. Golzad opined that the claimant's MRI did not show any evidence of stroke or any evidence of brain injury as the result of microvascular disease. The cognitive testing done on the claimant has a subjective component, but he did not doubt the claimant's veracity.

The claimant testified on May 16, 2016, that she returned to work for the employer in November 2016 for two days and sat in a waiting area to fill-in as a possible substitute, but during this time she was sleepy, drowsy, nervous, and felt dizzy when she stood up.

At the conclusion of the hearing, the WCLJ found Dr. Sharma to be more credible and disallowed the claim for post-concussion syndrome, but amended the claim to include the head. The claimant's average weekly wage was set at $400.00. The WCLJ found prima facie medical evidence for post-traumatic stress disorder and depression. The WCLJ made awards from September 22, 2015, to November 2, 2015, at the rate of $266.67 per week, found no compensable lost time from November 2, 2015, to November 4, 2015, made awards from November 4, 2015, to January 12, 2016, at the partial disability rate of $150.00 per week, held in abeyance from January 12, 2016, forward and awarded attorney fees of $220.00 to the claimant's attorney. These findings and awards were memorialized in a notice of decision filed on May 19, 2016.

The claimant requested administrative review arguing that Dr. Golzad's reports and testimony support amending the claim to include post-concussion syndrome and that the medical evidence in the file supports awards after November 4, 2015, at a total disability rate.

In rebuttal, the carrier argued that the WCLJ was correct in disallowing the claim for post-concussion syndrome based on the record and the medical testimony in the case and further awards were properly disallowed because the claimant's medical evidence was for post-concussion syndrome.

LEGAL ANALYSIS

Post-Concussion Syndrome

"It [i]s claimant's burden to establish a causal relationship between his employment and his disability by competent medical evidence (see Matter of Sale v Helmsley-Spear, Inc., 6 AD3d 999 [2004]; Matter of Keeley v Jamestown City School Dist., 295 AD2d 876 [2002]). To this end, a medical opinion on the issue of causation must signify 'a probability as to the underlying cause' of the claimant's injury which is supported by a rational basis (Matter of Paradise v Goulds Pump, 13 AD3d 764 [2004]; see Matter of Van Patten v Quandt's Wholesale Distribs., 198 AD2d 539 [1993]). '[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship' (Matter of Ayala v DRE Maintenance Corp., 238 AD2d 674 [1997], affd 90 NY2d 914 [1997]; see Matter of Zehr v Jefferson Rehab. Ctr., 17 AD3d 811 [2005])" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 [2008]).

A conflict of medical opinion presents a question of fact for the Board to resolve (Matter of Panagiotatos v Eastman Kodak Co., 222 AD 2d 877 [1995]). Additionally, "the Board is the final judge of witness credibility, and it alone can evaluate the factors relevant to determining whether the testimony of a party or witness is worthy of belief" (Matter of McCabe v Peconic Ambulance & Supplies Inc., 101 AD2d 679 [1984]).

In evaluating the medical evidence presented, the Board is not bound to accept the testimony or reports of any one expert, either in whole or in part, but is free to choose those it credits and reject those it does not credit (see Matter of Morrell v Onondaga County, 238 AD2d 805 [1997], lv denied 90 NY2d 808 [1997]; Matter of Wood v Leaseway Transp. Corp., 195 AD2d 622 [1993]). Thus, questions of credibility, reasonableness, and relative weight to be accorded to conflicting evidence are questions of fact that come within the exclusive province of the Board (see Matter of Berkley v Irving Trust Co., 15 AD3d 750 [2005]).

Here, a review of the record shows that Dr. Sharma examined the claimant on one occasion and the claimant stated at the examination that she had ongoing pains in her neck and back, headaches, dizziness, blurred vision, and difficulties with daily living activities. The doctor diagnosed the claimant with contusions of the face, cervical and lumbar sprain, and a normal neurological examination. However, Dr. Sharma did not review any of the claimant's prior medical records from Dr. Golzad. Dr. Sharma opined that punches to the face or head alone can't cause a concussion and found that the claimant did not sustain a cerebral contusion and, therefore, does not have post-concussion syndrome even though the claimant had head trauma and exhibited symptoms of a concussion including headaches, dizziness, anxiety, insomnia, and memory and cognitive problems.

Dr. Golzad credibly testified that the claimant provided a history of being punched in the face, chest, and shoulder by a student on her bus route. Dr. Golzad testified that he performed an evaluation of the claimant that revealed that she was very slow on her mental status testing, but was normal on her cranial nerves examination. The doctor opined that the claimant had post-concussion syndrome. The claimant's neuropsychological testing had abnormal results in her attention span and information processing speed as well as lower scores in her memory recall, executive function, visual, spatial, and verbal function. Therefore, the claimant's testing results were consistent with her reported symptoms.

While conflicting evidence exists, the Full Board finds that the preponderance of the evidence in the record, and in particular Dr. Golzad's opinion that the claimant suffers from post-concussion syndrome due to the accident of record because the claimant suffered a head trauma, developed concussion symptoms, and her testing results were consistent with her reported symptoms, supports amending this claim to include post-concussion syndrome.

Awards

Dr. Golzad's opined that based on the post-concussion syndrome, the claimant was temporarily totally disabled because she had daily severe headaches, she could not sleep, and she had cognitive problems. Therefore, based on Dr. Golzad's opinion, awards are made at the temporary total disability rate of $266.67 for the period of November 4, 2015, to January 12, 2016, and continuing.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed May 19, 2016, is MODIFIED to amend this claim to include post-concussion syndrome and to make awards at the temporary total disability rate of $266.67 for the period of November 4, 2015, to January 12, 2016, and direct continuing payments at $266.67 per week. The case is continued.