Third Department Decisions 10-2-14

Today the Court decided two cases dealing with workers’ compensation .

In Matter of Dowdel, Appeal from a decision of the Workers’ Compensation Board, filed March 25, 2013, which ruled that claimant’s posttraumatic

stress disorder was consequential to his established claim for a back injury and awarded further workers’ compensation benefits.

Claimant worked as an aide at a residential center for juvenile delinquents who had committed the equivalent of felonies, and was tasked with supervising the residents. He injured his back while restraining an unusually violent resident in May 2010, and successfully applied for workers’ compensation benefits. In April 2011, claimant filed a second claim alleging that he had sustained mental injuries as a result of the incident. The two cases were combined and, following a hearing, a Workers’ Compensation Law Judge amended the claim to include consequential posttraumatic stress disorder, depression and anxiety. The Workers’ Compensation Board affirmed, and the employer and its workers’ compensation carrier (hereinafter collectively referred to as the employer) appeal.

The Court affirmed. “Whether a subsequent disability arose consequentially from an existing compensable injury is a factual question for resolution by the Board, and its determination will not be disturbed when supported by substantial evidence” (Matter of Bailey v Ben Ciccone, Inc., 104 AD3d 1017, 1017 [2013] [citations omitted]; accord Matter of Goldstein v Prudential, 117 AD3d 1368, 1369). A consequential injury, in turn, is one that “result[s] directly and naturally from claimant’s prior injuries and the disability thereby produced” (Matter of Sullivan v B & A

Constr., 307 NY 161, 164 [1954]). Claimant here testified that he was assigned to monitor video feeds of the facility upon his return to work from his back injury, work that required him to constantly observe the unruly behavior of the residents and reminded him of the initial incident and his injuries. His injuries left him feeling helpless to assist the coworkers he observed dealing with the residents, and he ultimately sought medical assistance after he became enraged and blacked out due to watching numerous incidents where other employees required aid.

Claimant was thereafter diagnosed with posttraumatic stress disorder, accompanied by anxiety and depression, and his treating psychologist stated in no uncertain terms that those conditions flowed from the May 2010 incident and the injuries he sustained therein. The Board credited the psychologist’s factually specific opinion (cf. Matter of Bradley v US Airways, Inc., 58 AD3d 1043, 1044-1045 [2009]), and the employer submitted no medical evidence to rebut it. Under these circumstances, we find substantial evidence in the record to support the Board’s

determination (see Matter of Bailey v Ben Ciccone, Inc., 104 AD3d at 1018; Matter of Guzman v Display Creation, 202 AD2d 709, 709 [1994]; Matter of Ransiear v Lewis County Welfare Dept., 33 AD 2d 940, 941 [1970]).

In Matter of Anderson, the claimant appealed a finding of no further causally related disability. Claimant was involved in a work-related automobile accident in 2002, and he sought

workers’ compensation benefits for injuries to his head, neck and right shoulder. The claim was established for injuries to the neck and back later that year, with claimant directed “to submit

medical evidence for all additional sites claimed.” The Workers’ Compensation Board found that claimant had no continuing disability in 2005, crediting medical evidence that he had been

magnifying his symptoms and that objective testing did not support his claims of continuing disability. He was thereafter diagnosed as suffering from a partial right rotator cuff tear in 2009

and, alleging that the tear was related to the 2002 accident, claimant sought to include it under his workers’ compensation claim. The Board ultimately rejected that application, finding that claimant had not

established a causal link between the 2002 accident and the tear.

The Court affirmed . They found Claimant was obliged to establish a causal relationship between the 2002 accident and his right rotator cuff tear (see Matter of Dizenzo v Henderson & Johnson, 114 AD3d 1014,

1014 [2014]; Matter of Perez v Mondial Tiles, Inc., 104 AD3d 998, 998 [2013]). Claimant reported suffering from right shoulder pain after the 2002 accident, but that pain was diagnosed as

stemming from a sprain or strain and was categorized by one examining doctor as subjective. Notwithstanding the lack of contemporaneous evidence to demonstrate that claimant had torn

his rotator cuff in the 2002 accident, claimant’s present orthopedist opined, after reviewing an MRI taken in 2009, that he had, in fact, sustained the injury in the accident. The

orthopedist also admitted, however, that age-related rotator cuff degeneration occurred even without any traumatic injury. The Board found that the orthopedist had not “testif[ied]

convincingly in support of a causal relationship” given these facts and, inasmuch as claimant submitted no other proof to link the rotator cuff tear to the accident, the Board’s decision is

supported by substantial evidence in the record (Matter of Satalino v Dan’s Supreme Supermarket, 91 AD3d 1019, 1020 [2012]; see Matter of Dizenzo v Henderson & Johnson, 114 AD3d at 1014;

Matter of Jaquin v Community Covenant Church, 69 AD3d 998, 1000 [2010]).

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