Third Department Decision- 11-7-13

Today the Court decided 3 cases dealing with workers compensation issues.

In Matter of Mallette, the carrier appealed a finding that the claimant’s disc replacement surgery was causally related to the compensable accident. In 2007, claimant began treating for lower back pain. She was diagnosed with a disc herniation and thereafter had microdiscectomy surgery in 2008.

When that did not help the claimant’s treating doctor requested an artificial disc replacement procedure (hereinafter ADRP) in 2009. However, claimant’s private health insurance carrier did not approve the ADRP.

On March 26, 2010, claimant fell through a trapdoor at work and suffered further injuries. Her claim for workers’ compensation benefits was established for injuries to, among other things, her lower back. Den Haese thereafter requested authorization from the Workers’ Compensation Board to perform the ADRP. Following hearings and deposition testimony, a Workers’ Compensation Law Judge (hereinafter WCLJ) concluded that the need for the ADRP was both due to a preexisting condition and causally related to claimant’s work accident. The WCLJ then found the employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) 50% liable for the surgery. Upon review, the Board modified the WCLJ’s determination by finding the carrier solely liable for the cost of the ADRP, without prejudice to further consideration of apportionment after a finding of permanency has been made, but otherwise affirmed. The carrier appeals, arguing that claimant’s need for the ADRP is not causally related to her accident.

The Court noted that they will uphold the Board’s determination of causal relationship if it is supported by substantial evidence (see Matter of Virtuoso v Glen Campbell Chevrolet, Inc., 66 AD3d 1141,1142 [2009]; Matter of Howard v New York Times, 302 AD2d 698, 699[2003], lv dismissed and denied 100 NY2d 531 [2003]). Here, the record reflects that, prior to the accident, claimant was working full time in a physically demanding job without restrictions, in spite of the fact that she had been treated for back pain for several years and Den Haese had recommended the ADRP. Following the accident, however, claimant’s lower back pain worsened to the point where she could no longer work.

Claimant’s pain management physician, her chiropractor, the physician that conducted an independent medical examination and Den Haese all opined that her preexisting condition was aggravated by her fall and that, following her fall, she suffered from a causally-related total temporary disability. Accordingly, the Board’s finding that the accident at work aggravated claimant’s preexisting condition and that the need for the ADRP is causally related to the accident is supported by substantial evidence and will not be disturbed (see Matter of Hargraves v Dormann Lib., 18 AD3d 1105, 1106 [2005];Matter of Sidaris v Brookhaven Mem. Hosp., 271 AD2d 884, 885[2000]).

In Matter of Bednarek, the carrier filed an appeal which ruled that claimant sustained an accidental injury arising out of and in the course of her employment. Claimant was employed as a home attendant for the elderly and, on the day in question, worked two shifts with different clients. She fell and was injured while walking from the first client’s residence to the second client’s residence, and applied for workers’ compensation benefits. Following a hearing, a Workers’ Compensation Law Judge determined that the injury arose out of and in the course of her employment. A divided panel of the Workers’ Compensation Board agreed, prompting the employer and its workers’ compensation carrier to seek full Board review as of right (see Workers’ Compensation Law § 23). The full Board affirmed, and the employer and carrier appeal The Court affirmed. While “injuries sustained during travel to and from the place of employment”are generally not compensable under the Workers’ Compensation Law, an outside employee “who does not have a fixed worksite[] may be compensated for injuries sustained in the course of” work-related travel (Matter of Neacosia v New York Power Auth., 85 NY2d 471, 475 [1995]). The employer and carrier contend that claimant was not an outside employee, but “[t]he distinguishing feature of outside employees is that they do not work at a fixed location and are required to travel between work locations” (Matter of Bobinis v State Ins. Fund, 235 AD2d 955, 956 [1997]; see Matter of Bennett v Marine Works, Inc., 273 NY 429, 431 [1937]). The employer here assigned claimant to care for two clients in different locations and, thus, substantial evidence supports the Board’s determination that she “became an outside employee when [s]he left” one work site and proceeded to another (Matter of Marciniak v Berlitz School of Languages, 43 AD2d 509, 512 [1974], appeal dismissed 34 NY2d 843 [1974]; see Matter of Greene v City of N.Y. Dept. of Social Servs., 44 NY2d 322, 325 [1978]; Matter of Egloff v Ob-Gyn Assoc. of N. N.Y., 245 AD2d 965, 966 [1997]). The remaining contentions of the employer and carrier were examined and found to lack merit by the Court.

In Matter of Good, Appeal from a decision of the Workers’ Compensation Board, filed July 9, 2012, which denied the workers’ compensation carrier’s request for apportionment among claimant’s prior employers pursuant to Workers’ Compensation Law § 44. Performed secretarial services for various employers, beginning in 1966. In 2004, claimant sought medical treatment, complaining of pain in her hands and a weak grip, and she was diagnosed with carpal tunnel syndrome. In 2007, she filed a claim for workers’ compensation benefits. Her claim was established as an occupational disease of the left wrist, with a date of disablement of October 1, 2007, and the claim was subsequently amended to include bilateral elbows and right carpal tunnel syndrome. She was awarded a 25% schedule loss of use of the left hand in 2010 and the employer’s workers’ compensation carrier sought apportionment of responsibility for liability of the claim with claimant’s two most recent prior employers, covering the years between 1987 and 2002 (see Workers’ Compensation Law § 44). A Workers’ Compensation Law Judge denied the carrier’s request, finding no medical evidence that claimant contracted her condition during her prior employment, and the Workers’ Compensation Board affirmed upon administrative review. The employer and the carrier appeal Claimant began working for the Town of Brutus (hereinafter the employer) as a court clerk in 2002. Prior to that, she had performed secretarial services for various employers, beginning in 1966. In 2004, claimant sought medical treatment, complaining of pain in her hands and a weak grip, and she was diagnosed with carpal tunnel syndrome. In 2007, she filed a claim for workers’ compensation benefits. Her claim was established as an occupational disease of the left wrist, with a date of disablement of October 1, 2007, and the claim was subsequently amended to include bilateral elbows and right carpal tunnel syndrome. She was awarded a 25% schedule loss of use of the left hand in 2010 and the employer’s workers’ compensation carrier sought apportionment of responsibility for liability of the claim with claimant’s two most recent prior employers, covering the years between 1987 and 2002 (see Workers’ Compensation Law § 44). A Workers’ Compensation Law Judge denied the carrier’s request, finding no medical evidence that claimant contracted her condition during her prior employment, and the Workers’ Compensation Board affirmed upon administrative review. The employer and the carrier appeal. “In determining whether a claim should be apportioned between previous employers in the same field, the relevant focus is whether the claimant -contracted an occupational disease while employed by that employer” (Matter of Walton v Lin-Dot, 85 AD3d 1413, 1414 [2011], quoting Matter of Polifroni v Delhi SteelCorp., 46 AD3d 970, 971 [2007]; accord Matter of Fazzary v Niles, 89 AD3d 1187, 1188 [2011]). Here, although claimant testified that she had experienced some symptoms of pain in her wrists during her previous employments, she did not seek or receive medical treatment for her condition until 2004. Further, while an independent medical examiner opined that “there appears to be a cause for apportionment” and recommended that the claim should be apportioned 75% to the employer and 25% to claimant’s previous employers, he did not opine as to when claimant contracted her condition and offered no objective medical proof in support of his findings (see Matter of Walton v Lin-Dot, 85 AD3d at 1414). Accordingly, the Board’s determination that claimant did not contract her condition while working for a previous employer is supported by substantial evidence and will not be disturbed.

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