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Workers' Compensation Board

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Case # G0758597
Date of Accident: 02/19/1992
District Office: Syracuse
Employer: Cooper Industries Inc.
Carrier: Cooper Industries Inc.
Carrier ID No.: W375398
Carrier Case No.: 0143015239000101430
Date of Filing of Decision: 10/10/2017
Claimant's Attorney: Fallon Fallon & Bigsby LLP
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on September 19, 2017, considered the above captioned case for Mandatory Full Board Review of the amended Board Panel Memorandum of Decision filed April 7, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant is barred from receiving further indemnity benefits pursuant to Workers' Compensation Law (WCL) § 123.

The Workers' Compensation Law Judge (WCLJ) found that WCL § 123 does not apply to this claim, as there was no true closure due to the issues of the claimant's entitlement to compensation and ongoing treatment remained open.

The Board Panel majority agreed with the WCLJ, finding that the claimant's testimony was sufficient to establish intermittent treatment of the claimant to warrant the finding of no true closing and deny the application of WCL § 123 to this matter.

The dissenting Board Panel member would have found that WCL § 123 applies to this case.

The carrier filed an application for Mandatory Full Board Review on April 18, 2017, arguing that WCL § 123 applies.

The claimant filed a rebuttal on May 16, 2017, arguing that WCL § 123 does not apply because there was no true closure of the claim.

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

FACTS

On August 16, 2013, the claimant filed a form C-3 (Employee Claim), alleging that he worked for the employer as a machine operator, and that on February 19, 1992, he was injured while lifting iron from a tub (1992 claim). Claimant indicated that he experienced pain radiating from his neck, down his arm to his ring finger, as well as into his chest.

On October 29, 2013, medical reports were filed for treatment the claimant underwent with the employer's plant medical department in 1992. The claimant initially treated as a result of his work accident on February 19, 1992, and continued treatment for about a month and a half, when he was discharged on March 31, 1992. After that there is one more notation for treatment that occurred on August 27, 1992, when the claimant returned for recurrent discomfort.

Thereafter, the next medical documentation in the file is for treatment that occurred after 2013.

The claimant was examined by the carrier's orthopedic consultant on March 9, 2016, and a corresponding report was issued. In the report, the consultant noted that the claimant reported that after the 1992 accident, he may have been out of work for a week, and after returning to work, he continued to receive hot packs from the employer's medical facility for another seven or eight days, and then after that, the claimant had no other treatment other than using a heating pad at home and taking over-the-counter pain medications.

The claimant has also filed two other work-related claims while working for the same employer. In WCB # G0753764, the claimant indicated that he developed neck pain radiating from the neck down to the chest and left arm to the fingertips as the result of an incident on May 1, 2011 (2011 claim). In WCB # G1061937, the claimant indicated he developed left-sided neck pain radiating down the left shoulder, arm to the ring finger from repetitive lifting, pushing, and pulling steel and tubs of steel with a resulting date of disablement of June 17, 2013 (2013 claim).

During a hearing on March 20, 2014, the carrier's representative indicated that the carrier accepted the 1992 claim, and the issue of WCL § 123 was raised.

The claimant testified on March 20, 2014, that after the February 19, 1992, accident he has continued to have symptoms over the years. He treated with the employer's medical department. He would go there for about 30 minutes at a time and they would give him a warm towel and medication. He estimated that the last time he treated with the employer's medical department was back in 1996 or 1997. He clarified that he has received no recent treatment from the employer's medical department. He lost various time from work, however, he could not provide any specifics, such as how much time he lost or when the last time the lost time occurred. He did not get paid when he lost time from work. At times he was placed on light duty. He did not recall having any work restrictions after 1994.

The claimant again testified on January 5, 2016. Upon being asked by his attorney, the claimant agreed that as a result of his work injury in 1992, he received medical care off and on for about a year, maybe longer. Then, upon being asked by his attorney if he sought medical attention after 1992, the claimant explained that he experienced neck and shoulder pain on and off from 1992 until he left work. Although he could not recall specifics, after 1992, he continued to seek medical treatment at work, sometimes as much as three times a week. The medical department would put stuff on his shoulder and give him medicine, like aspirin and Tylenol.

By a decision filed January 8, 2016, the WCLJ established the 1992 claim for work-related injuries to the claimant's left shoulder, trapezius and a cervical injury. The WCLJ also noted that the carrier raised WCL § 123.

A nurse from the employer's medical department testified on February 25, 2016. At the beginning of the testimony, part of the claimant's medical file from the employer's medical department related to the claimant's shoulder and neck issues was entered into the record [in the 2011 claim]. The witness testified that she has been employed by the employer for about 36 years as an occupational health nurse. The first entry in the claimant's medical records is dated February 19, 1992, and indicates that the claimant was complaining of left shoulder and neck pain as a result of pushing a tub full of iron. She confirmed that the medical records document treatment the claimant received between February and March 1992, and then there is a gap in the records, with the next record dated August 27, 1992. She explained that there was a gap in the records because the records produced were only for treatment related to the claimant's shoulder and neck. After the August 27, 1992, entry, thereafter, there is another gap, with the next entry dated September 2012. Between August 27, 2012, and September 2012, the claimant presented back to the plant medical, but not for complaints concerning his shoulder or neck. She confirmed that between August 27, 1992, and September 21, 2012, plant medical did not provide any treatment to the claimant for complaints involving his shoulder or his neck. There would be records in the plant medical notes if, between that time period, the claimant had presented to plant medical because he was having pain with his neck or shoulder, and plant medical treated him with medication. On August 14, 2013, the claimant came to the plant medical, asked for his union steward, and then asked her to review his chart and see if he ever reported an injury to his neck or left arm. She advised the claimant that on February 19, 1992, he reported an injury and was treated. Thereafter, the claimant requested another C-3 from his steward, and left. The way the plant medical system works is that anytime an employee comes in for anything, a notation is made in the employee's medical chart. It would be unusual for an employee to come to plant medical to be treated without a notation being made.

By decision filed on May 4, 2016, the WCLJ, in pertinent part, found that there was no true closing of the case due to the outstanding issues concerning ongoing treatment and the claimant's entitlement to compensation, and therefore, WCL § 123 does not apply.

The carrier in the 1992 claim filed an application for administrative review contending that the WCLJ erred in finding no true closure and that WCL 123 applied. The carrier contended that there is no credible evidence that the claimant treated for his neck or shoulder between March 1992 and September 2012, or that he lost time from work related to the March 19, 1992, injury.

The claimant filed a rebuttal contending that the WCLJ correctly found that WCL 123 does not apply, as the case was informally opened in February 1992 when the claimant began treating with the employer's medical department, and there was no formal or informal closing because there was intermittent continued medical care provided by the employer since February 1992.

LEGAL ANALYSIS

"Section 123 provides the Workers' Compensation Board with authority to reopen closed cases, subject to the time limitation that no awards shall be made against the Special Fund or against an employer where the application is made 'after a lapse of eighteen years from the date of the injury or death and also a lapse of eight years from the date of the last payment of compensation'. This 'eighteen-and eight'-year time limitation applies only to cases which have been closed and are being reopened, but would not bar a new claim or continuing consideration of an open case" (Matter of Zechmann v Canisteo Volunteer Fire Dept., 85 NY2d 747 [1995] [citations omitted]).

Here, the claimant filed his C-3 regarding the February 19, 1992, accident on August 16, 2013, and the carrier accepted liability for the claim. It is undisputed that the statutory time periods had lapsed when the claimant filed the 1992 claim. Therefore, the sole question remaining in determining whether WCL § 123 applies to this claim is whether the case was truly closed prior to August 16, 2013.

"[A] case may be 'opened' by voluntary advance payments of compensation which, in effect, constitute an informal award ...When these payments cease, the case is 'closed' and the subsequent filing of a stale 'initial' claim is the equivalent to a reopening of the case" (Matter of Loiacono v Sears, Roebuck & Co., 230 AD2d 351 [1997], citing Matter of Riley v Aircraft Prods. Mfg. Corp., 40 NY2d 366 [1976]). The payment of a claimant's medical expenses may constitute an informal opening (see Loiacono, 230 AD2d 351 [1997]; see also Matter of Natale v New York City Dept. of Correction, 17 AD3d 877 [2005]; Matter of Rodriguez v Greenfield Die Casting, 53 AD3d 728 [2008]).

When such an informal opening has occurred, the case may be considered closed when the claimant has been discharged by the treating physician as essentially nonsymptomatic (see Loiacono, 230 AD2d 351 [1997]); the claimant has returned to work (see Natale, 17 AD3d 877 [2005]), even with symptomatic medical treatment authorized (see e.g. Matter of Mackey v Murray Roofing, 24 AD3d 1149 [2005]; Matter of Andrus v Purolator Prods., 301 AD2d 762 [2003]); or no action has been taken by the Board and no payments for compensation have been made to the claimant (see Rodriguez, 53 AD3d 728 [2008]).

"[W]here a carrier voluntarily pays for causally related medical treatments during the relevant time period, it should not be permitted to then use [WCL] § 123 with regard to such time" (Matter of Runge v Natl. League of Baseball, 103 AD3d 991, 992 [3rd Dept 2013]).

Based on the testimony of the claimant and the employer's nurse, the plant medical records, and the March 9, 2016, consultant's report, the claimant did not receive any treatment related to the injuries he sustained from the February 19, 1992, accident between August 1992 and September 2012. The claimant initially testified during the March 20, 2014, hearing, that he last treated in 1996 or 1997, and that he has received no recent treatment from the employer's medical department. The claimant initially testified during the January 5, 2016, hearing, that after his work injury in 1992, he received medical care off and on for about a year. The carrier's consultant indicated that the claimant reported that although he continued to treat at home with heating pads and over-the-counter medication, he only received treatment from plant medical for about seven or eight days after he returned to work. The employer's nurse testified that claimant's medical filed showed between August 27, 1992, and September 21, 2012, plant medical did not provide any treatment to the claimant for complaints involving his shoulder or his neck. The nurse explained that there would be records in the plant medical notes if during that time period the claimant had presented to plant medical because he was having pain with his neck or shoulder, and plant medical treated him with medication. She further explained that it would be unusual for an employee to come to plant medical to be treated without a notation being made.

The claimant's assertions during the January 5, 2016, hearing that he continued to receive treatment from the employer's plant medical right up to his May 2011 injury are not credible or supported by the record, as it contradicts his prior consistent testimony, the credible testimony of the employer's nurse, and the medical records in the file.

With regard to light duty work, the claimant testified that he could not recall having any work restrictions after 1994. The plant medical notes document that the claimant was given light duty on February 19, 1992, and was released to normal duty on March 10, 1992. Further, although the claimant testified that he lost various time from work, he could not provide any specifics, such as how much time he lost or when the last time the lost time occurred. No records have been submitted that support that the claimant had any causally related lost time beyond seven days.

The record supports a finding that the case was informally opened on February 19, 1992, when the claimant started treating with the employer's plant medical, and was informally closed on August 27, 1992, when he ceased treating. Thereafter, the case remained closed until after the statutory time periods had lapsed.

Therefore, the Full Board finds that the claimant is barred from receiving further indemnity benefits pursuant to WCL § 123. The claimant remains entitled to seek causally related treatment, consistent with the Medical Treatment Guidelines.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed May 4, 2016, is MODIFIED to find that the claimant is barred from receiving further indemnity benefits pursuant to WCL § 123 in this claim (WCB # G0758597). No further action is planned by the Board at this time.