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Workers' Compensation Board

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Case # G1507976
Date of Accident: 04/13/2016
District Office: Albany
Employer: Keymark Corp
Carrier: Charter Oak Fire Ins Co
Carrier ID No.: W054001
Carrier Case No.: E5N2818
Date of Filing of Decision: 10/04/2017
Claimant's Attorney: Martin Harding & Mazzotti LLP
Panel: Clarissa M. Rodriguez


The Full Board, at its meeting on September 19, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed January 18, 2017.


The issue presented for Mandatory Full Board Review is whether the evidence supports establishment of the claim as an occupational disease.

In a reserved decision filed on September 1, 2016, the Workers' Compensation Law Judge (WCLJ) disallowed the claim, finding the claimant's testimony to lack credibility and further finding insufficient medical evidence that the claimant suffered an occupational disease to the low back.

The Board Panel majority reversed the WCLJ decision in its entirety and established the claim for an occupational disease of the back with a date of disablement of April 13, 2016.

The dissenting Board Panel member would have affirmed the WCLJ.

The carrier filed an application for Mandatory Full Board Review on February 14, 2017, arguing that the medical evidence was insufficient to establish a causal relationship between the claimant's back injury and his employment, and that the credibility finding of the WCLJ should be adopted.

The claimant filed a rebuttal on March 15, 2017, arguing that the Board Panel majority's opinion should be adopted by the Full Board.

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


This is a controverted claim for an occupational disease of the low back.

The claimant filed a C-3 (Employee Claim) indicating that he felt pain in his lower back while loading glass panes into a machine at work on July 1, 2015.

The claimant completed an employer accident/incident report on March 30, 2016, which indicates that he was pushing "glass harps" and felt a pain in his back (see ECF Doc ID # 268907458). The report further states that the claimant had previously sought medical attention for his back pain, and his primary care physician referred him to an orthopedic surgeon, who would not see the claimant until a claim was created (see id. at p. 2). Attached to the accident report is a note from the nurse practitioner at Hometown Health Center, Ashley Gee NP Gee, which states that the claimant was seen on December 14, 2015, and that he should be excused from work at 3 p.m. until further notice "due to symptoms he is being worked up for at this office" (id. at p. 1).

In a medical narrative dated April 13, 2016, Dr. Shen diagnosed the claimant with spondylosis with radiculopathy, lumbar region, and intervertebral disc degeneration (see EC4-NARR [4-13-16], at p. 5). The claimant presented with back pain that began about a year prior (see id. at p. 1). The claimant had a history of having a collapsed arch in his left foot from birth (see id.). The claimant indicated to Dr. Shen that he does a lot of heavy lifting, pushing, and pulling, which seems to make his pain significantly worse, but he denied any specific injury or trauma (see id.). The narrative further noted that an MRI showed multilevel degenerative disc and joint disease, worse at L5-S1, with severe degenerative disc changes and moderate bilateral neural foraminal stenosis (see id. at p. 5). Dr. Shen concluded that the incident the claimant described was the competent medical cause of his injury (see id. at p. 6). Dr. Shen found "0%" temporary impairment.

The claimant was examined by the carrier's consultant, Dr. Coniglio, on July 15, 2016. Dr. Coniglio diagnosed the claimant with chronic low back pain (see IME-4 [7-15-16], at p. 7). The claimant indicated that he had no prior injuries to his back and stated that he reported the injury to the employer on July 1, 2015 (see id. at p. 3). Given the inadequacy of the medical records, Dr. Coniglio could not state precisely whether the diagnosis was related to claimant's work duties (see id. at p. 8).

Dr. Shen was deposed on August 1, 2016, and testified that the claimant was seen on April 13, 2016, by his physician's assistant for complaints of back pain (Deposition, Dr. Shen, 8/1/16, p. 4). The claimant reported that the pain began around July 1, 2015, and had been getting progressively worse while he has been working (see id. at p. 5). Reflex findings on exam were "not abnormal[,]" although the claimant did have a positive straight leg raise, which, Dr. Shen explained, is a provocative test for nerve tension and, in the claimant's case, indicated some peripheral radiculopathy likely caused by nerve impingement in the lumbar spine (see id. at pp. 6-7). An MRI showed degenerative disc disease and facet joint degeneration (see id. at p. 8). Specifically, there was severe degenerative disease with disc collapse and some moderate foraminal stenosis at L5-S1 (see id. at p. 7). Dr. Shen testified that these findings would have developed over time rather than from one specific incident (see id. at p. 8). To the best of his knowledge, the claimant's symptoms were caused by his job duties (see id. at p. 10). On cross-examination, Dr. Shen conceded that the degenerative disc disease shown on the MRI was not inconsistent with a 54-year-old patient and could be seen in the claimant even if he wasn't in a job that involved pushing window panes (see id. at p. 11). Dr. Shen testified that when a patient has unilateral flat foot, as the claimant does, it changes some of the mechanics of the pelvis, which can transfer up to the spine (see id. at p. 13). He testified that the claimant's flat foot likely played a role in the degeneration in the claimant's back, but he could not say it was the only reason (see id. at p. 14).

The claimant testified through an interpreter at a hearing held on August 3, 2016, that he worked for the employer for eight years, putting glass used for window panes into a machine to be washed (see Hearing Transcript, 8/3/16, p. 3). Prior to working there, he had no injuries or treatment involving his back (see id.). The claimant testified that he works from 6 a.m. until 4:30 p.m. and brings racks of glass to be washed approximately 20 times a day (see id. at p. 4). He stands the whole time and has to bend and lift pieces of glass as well (see id. at p. 6). He started to have pain in his hips and lower back and cramps in his feet (see id. at p. 7). He told his supervisor he was having pain and difficulty lifting the glass "on the same day" that he started to experience the pain, but the claimant could not recall the specific date when his pain started or when he spoke to his supervisor (see id. at pp. 7-8). The claimant also could not recall the first date that he sought medical attention for his back, but he did recall seeing a doctor at some point (see id. at p. 9). After the claimant's recollection was refreshed with medical records, the claimant recalled that he was treated by a nurse practitioner, NP Gee, for his back on December 8, 2015 (see id.).

When asked to explain what happened at work on July 1, 2015, the claimant could not remember whether he experienced a specific accident or whether anything out of the ordinary happened at work (see id. at p. 11). He did, however, recall speaking to several people at work on that date; he reported that people "upstairs" asked him for more information about his back pain and for hospital records (id. at p. 12). The claimant explained that the supervisor to whom he had initially reported his back pain did not file an accident report, so his employer needed more information and made him complete an accident report on July 1, 2015 (see id. at pp. 12-13). When it was pointed out to the claimant that the accident report to which he was referring mentioned medical treatment to the back, which the claimant did not receive until December 2015, the claimant conceded that the meeting and accident report could not have happened until sometime in 2016, not on July 1, 2015, as he had originally testified (see id. at p. 13).

On cross examination, the claimant acknowledged that his wife receives Supplemental Security Income (SSI) (see id. at p. 15). He further testified that his hours were reduced at some point before he sought medical treatment in December 2015, and that in either October or November 2015, he was informed that he could no longer work a reduced work schedule (see id. at p. 16). He stated that the December 2015 appointment with NP Gee was the first time he had ever sought treatment for his back (see id.). The claimant acknowledged that, at the December 2015 medical appointment, RN Gee provided him with a note to work fewer hours, but that she did not give him any work-related restrictions (see id. at pp. 16-17). As a result of NP Gee's note, the claimant was able to leave work at 2:30 p.m. (see id. at p. 20). He notified his supervisor about his back pain "a lot of time" before he sought treatment with NP Gee in December 2015 (id. at p. 17). The claimant denied any connection between the reduction in his work hours and maintaining his wife's SSI benefits (see id. at p. 20).

The claimant's supervisor testified that the claimant is employed as a pusher; he has racks of glass and takes one piece at a time out and pushes it through a washer to be cleaned (see id. at p. 24). The glass panes are different sizes and the claimant would clean approximately 800 panes a day (see id. at p. 25). On March 30, 2016, the claimant told her that he had a back injury and needed an accident report filled out (see id.). The claimant had indicated that he had back problems at some point in 2015 and that he was seeking medical attention, but he did not indicate that the injury was work related at that point in time (see id. at p. 26). The claimant brought her a note from his medical provider dated December 14, 2015, which indicated he needed to work fewer hours (see id. at p. 27). The claimant had previously requested to work fewer hours in the summer of 2015 because his wife was losing her social security benefits because he was working too many hours (see id. at pp. 28-29). The supervisor talked to her boss about the claimant's request and, as a result, the claimant was not scheduled for overtime for a couple of months, thereby reducing his hours (see id. at p. 30). However, around October 2015, the claimant was told he needed to start working overtime hours again (see id.). The supervisor confirmed that at no point prior to March 2016 did the claimant report a work-related injury to his back (see id.).

Also testifying at the August 3, 2016, hearing was the health and safety manager for the employer. She testified that both she and the supervisor filled out the March 30, 2016, accident report, which was the first date the claimant had reported his back injury (see id. at p. 31). She further testified that the claimant admitted to having at least one, possibly two, prior workers' compensation claims (see id. at pp. 37, 39). During their meeting, the claimant informed the health and safety manager that his back started to hurt him sometime in the fall and he had sought treatment, but it was not billed through the workers' compensation carrier (see id. at p. 39). At no point during their conversation did the claimant allege that he had informed the employer about his back injury prior to March 2016 (see id. at p. 40).

In a reserved decision filed on September 1, 2016, the WCLJ found the testimony of the employer's witnesses more credible than that of the claimant, even considering the communication issues involved when using an interpreter, and found insufficient medical evidence that the claimant suffered an occupational disease to the low back. The claim was disallowed.

The claimant sought administrative review, arguing that the reserved decision inappropriately credited the testimony of the employer's witnesses. The claimant further argued that the MRI showed more than degenerative disc disease, and the evidence supported establishment of the claim.

In rebuttal, the carrier maintained that the credibility determinations made by the WCLJ were proper and that the decision should be affirmed in its entirety.


"[I]t is axiomatic that a claimant bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence" (Matter of Williams v Colgate Univ., 54 AD3d 1121 [2008] [citations omitted]). The medical opinion need not be expressed with absolute or reasonable certainty (Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890 [2009]). It must, however, be an indication of sufficient probability as to the cause of the injury, and the medical opinion must be supported by a rational basis (id.). "[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 [2008] [citations and internal quotation marks omitted]).

An occupational disease "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] [internal quotation marks and citation omitted]. Evidence that a repetitive action springs from the "nature of the employment" or "conditions to which all employees of a class are subject" (Matter of Newton v County of Erie, 7 AD2d 29 [1958]) or is a distinct feature of a claimant's employment together, with medical evidence of the necessary causal link, will support a claim for an occupational disease (see Matter of Aldrich v St. Joseph's Hosp., 305 AD2d 908 [2003]).

Here, the nature of the claimant's work included loading pieces of glass into a washer approximately 20 times per day. To do this job, he had to stand, bend, and lift approximately 800 panes of glass daily. The claimant testified that, at some point while working for the employer, he began to experience pain in his lower back and hips as well as cramps in his feet as a result of his job duties. The claimant stated that he first sought medical attention for his back pain on December 8, 2015, with NP Gee. In an April 13, 2016, medical report, Dr. Shen indicates that the claimant suffered from multilevel degenerative disc and joint disease, with severe degenerative disc changes and moderate bilateral neural foraminal stenosis. Therein, Dr. Shen opined that the claimant's employment in the manufacture of window washing, which involved heavy lifting, pushing, and pulling, was the competent medical cause of his injury. The carrier's consulting physician did not render an opinion regarding causality. Accordingly, the claimant proffered sufficient competent medical evidence to establish a causal relationship between his employment and back injury.

The carrier argues that the claimant's back injuries were due to his age of 54 years and/or his preexisting collapsed arch condition. However, the carrier offers no medical evidence finding a causal relationship between these aforementioned factors and the claimant's back injury; rather, the carrier offers only speculative statements made by Dr. Shen that the claimant's age and collapsed arch could have contributed to his back injury. The carrier's argument is also rebutted by the claimant's testimony that he had no preexisting back pain, which is corroborated by a June 2, 2015, medical report, finding the claimant's back to be "normal" with a negative straight leg raise test (see ECF Doc ID # 270087863, at p. 5). Although the claimant's testimony lacked specificity and clarity, particularly with regard to the dates of his medical visits and employer notice, this ambiguity does not negate the unequivocal and unrefuted medical evidence and Dr. Shen's deposition testimony, which found a causal link between the claimant's back injury and his employment.

Therefore, the Full Board finds that the preponderance of the evidence supports establishing this claim for an occupational back injury, with a date of disablement of April 13, 2016.


ACCORDINGLY, the WCLJ reserved decision filed on September 1, 2016, is REVERSED. This claim is established for an occupational back injury and the date of disablement is set at April 13, 2016. The case is restored to the trial calendar for development of the record on all outstanding issues. The case is continued.