Third Department Decisions – 3-14-13

Today the Court decided 5 cases dealing with workers’ compensation.

In Matter of Minichelli , the carrier appealed a decision which ruled that the employer’s workers’ compensation carrier is not entitled to reimbursement from the Special Disability Fund.
The carrier applied for 15-8(d) relief based on a prior conditions after a finding of permanency for a hand injury, the law judge denied the application and the Board affirmed
without prejudice. The carrier appealed and the Court affirmed the Board.
To be entitled to reimbursement, it was incumbent upon the carrier to show that claimant had a preexisting permanent condition that hindered her job potential, that she suffered a
subsequent work-related injury and that she sustained a permanent disability – due to both conditions – that is materially and substantially greater than that which would have been caused by
the work-related injury alone (see Matter of Weiner v Glennman Indus. & Commercial Contr. Corp., 95 AD3d 1516, 1517 [2012]; Matter of Grabinsky v First At Nursing Servs., 79 AD3d 1494, 1495
[2010]).The Court noted that while the record reflects that claimant had preexisting medical conditions – including asthma, high cholesterol, arthritis and anxiety – there is no evidence that these
conditions hindered or were likely to hinder claimant’s job potential. According to claimant, and as indicated by her medical records, at the time of her accident her preexisting conditions were adequately controlled by medication, she was working full time with no restrictions and she had not missed time from work due to the preexisting conditions. Accordingly, we find that the Board’s decision denying reimbursement is supported by substantial evidence (see Matter of Weiner v Glennman Indus. & Commercial Contr. Corp., 95 AD3d at 1518; Matter of Pinter v Louis J. Kennedy Trucking Corp., 82 AD3d 1481, 1481-1482 [2011]).

In Matter of Perez, the carrier appealed the establishment of a claim. Claimant worked for the employer as a laborer, delivering and installing marble floors. On March 5, 2007, claimant
experienced dizziness and saw lights while straining to carry a heavy marble floor up a flight of stairs with coworkers. Claimant went to the hospital later that day complaining of headaches and blurry vision. In July 2007, claimant underwent a craniotomy to relieve pressure from a blood clot and he had a shunt placed in his head. While he was able to return to work on light duty for a brief period, claimant ceased working in November 2007 and thereafter filed a claim for workers’ compensation benefits. The employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) controverted the claim and, following proceedings, a Workers’ Compensation Law Judge found that a work-related accident had occurred on March 5, 2007 of which the employer had notice, but that claimant failed to establish a causal relationship. The Workers’ Compensation Board reversed, finding that a causal relationship had been established.

The Court affirmed stating, to establish a claim for workers’ compensation benefits, a claimant bears the burden of demonstrating a causal relationship between the claimed injury and his or
her employment (see Matter of Bland v Gelman, Brydges & Schroff, 100 AD3d 1289, 1291 [2012], lv dismissed ___ NY3d ___ [Feb. 19, 2013]; Matter of Maye v Alton Mfg., Inc., 90 AD3d 1177, 1177 [2011]). The Board, in turn, “is vested with the discretion to assess the credibility of medical witnesses and its resolution of such issues is to be accorded great deference , particularly with respect to issues of causation” (Matter of Roberts v Waldbaum’s, 98 AD3d 1211, 1211 [2012], quoting Matter of Peterson v Suffolk County Police Dept., 6 AD3d 823, 824 [2004]). Toward that end, a medical opinion relied upon by the Board “must signify “a probability as to the underlying cause’ of the claimant’s injury which is supported by a rational basis” (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920, 922 [2008], quoting Matter of Paradise v Goulds Pump, 13 AD3d 764, 765 [2004]; Matter of Maye v Alton Mfg., Inc., 90 AD3d at 1177-1178).

Here the Court stated , the record demonstrates that claimant experienced dizziness on March 5, 2007 while lifting a heavy object at work which caused him to visit the hospital later that day and be
absent from work thereafter. Larry Neuman, claimant’s treating physician as of July 2008, testified that, based upon information provided by claimant, as well as physical examinations,
diagnostic testing and the findings of other physicians in his practice, it was his opinion that the heavy lifting and increased cranial pressure on March 5, 2007 was the competent
producing cause of a stroke and cervical radiculopathy suffered by claimant. Similarly, physician Spencer Colden, who also began treating claimant in July 2008, testified that claimant
likely ad experienced a hemorrahagic stroke as indicated by the type of shunt that had been placed, as well as a report of hydrocephalus. Colden further explained that such events are usually caused by straining or heavy lifting. Colden diagnosed claimant with a marked to total disability as a result of, among other things, cervical radiculopathy and his status post-cerebrovascular accident and stated unequivocally that claimant’s injuries were causally related to his work accident. Notably, when confronted with the possibility that claimant may have reported dizziness and underwent blood clot screening prior to March 5, 2007, Colden stated that such information would not change his opinion as to whether claimant experienced a stroke on that date or whether his subsequent condition was causally related. Accordingly, and particularly in light of the carrier’s failure to produce any conflicting medical evidence, we find that the Board’s decision is supported by substantial evidence (see Matter of Roberts v Waldbaum’s, 98 AD3d at 1212; see e.g. Matter of Maye v Alton Mfg., Inc., 90 AD3d at 1177-1178; Matter of Shkreli v Initial Contract Servs., 55 AD3d 1067, 1070 [2008]).

In Matter of Mason, the carrier appealed the establishment of the case. Claimant, while working as a truck driver, sustained a back injury in April 2009 that he immediately reported to the employer. Claimant had no lost time as a result of the incident and sought no immediate medical treatment. In November 2010, claimant first sought treatment for lower back pain and he ceased working on December 15, 2010 due to disability. After an epidural steroid injection failed to provide relief, claimant underwent back surgery on January 5, 2011. The following day, claimant submitted a claim for disability benefits that indicated that the disability was not the result of an injury arising out of and in the course of his employment. Subsequently, on January 28, 2011, claimant filed a claim for workers’ compensation benefits. After the case was indexed by the Workers’ Compensation Board in March 2011, the employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) filed form C-669 in April 2011, on which the carrier indicated that the claim was not being disputed, but also raised the issues of whether claimant’s disability was causally related, whether he was currently out of work due to unrelated reasons and whether he had sustained a new injury. Notwithstanding the carrier’s objections, it paid several medical bills associated with claimant’s treatment, including the bill for his January 2011 surgery. A hearing ensued in June 2011 before a Workers’ Compensation Law Judge (hereinafter WCLJ) at which the carrier questioned the causal relationship between the April 2009 injury and claimant’s current disability and requested further development of the record. The WCLJ denied that request and thereafter awarded claimant benefits for the period subsequent to his January 2011 surgery and
continuing. The carrier appealed and the Board affirmed, finding, among other things, that the carrier’s request to further develop the record was untimely. The carrier now
appeals. The Court reversed. The Court noted that it is axiomatic that both the claimant and the employer or its workers’ compensation carrier are entitled to introduce witnesses in compensation proceedings
(see Matter of Lewis v Stewart’s Mktg. Corp., 90 AD3d 1345, 1346 [2011]; Matter of Carr v Cairo Fire Dist., 80 AD3d 810, 811-812 [2011]; Matter of Emanatian v Saratoga Springs Cent. School Dist., 8 AD3d 773,
774 [2004]). Here, during the course of the June 2011 hearing, the carrier requested further development of the record, which was immediately denied by the WCLJ and, prior to the close of the
hearing, the carrier again sought further development, particularly requesting the testimony of both claimant and his treating physician. Considering the facts that more than 19 months had elapsed between the April 2009 accident and the time that claimant first sought medical attention, the initial paperwork submitted to the employer indicated that claimant’s disability did not arise out of his employment and claimant was on notice early in the proceedings that the carrier was contesting whether the disability was causally related, we find it was an abuse of discretion for the WCLJ to deny the carrier’s timely request to further develop the record (see Matter of Burroughs v Empire State Agric. Compensation Trust, 2 AD3d 1120, 1121 [2003]). Inasmuch as the carrier had raised the issues of whether there was a causally related disability, whether claimant was out of work due to unrelated reasons and whether claimant had sustained a new injury, it was clear upon the carrier’s initial request to the WCLJ that the testimonies of both claimant and his medical provider were essential to the development of the case. To the extent that the Board held, and it now argues, that the carrier is estopped from contesting liability because it erroneously paid for certain medical bills, including claimant’s surgery, it is noted that the Board cited no authority for its holding. Indeed, we have unequivocally held that, while an advance payment of compensation in the form of covered medical bills precludes a defense based upon the statute of limitations, it does not foreclose a carrier from asserting other defenses and, thus, will not give rise to estoppel where the elements have not been otherwise established (Matter of Schneider v Dunkirk Ice Cream, 301 AD2d 906, 909 [2003]). Finally, to the extent that the Board found that the carrier failed to timely deny claimant’s request for authorization of surgery in violation of Workers’ Compensation Law § 13-a (5) and 12 NYCRR 325-1.4 (a) (6), the Board’s determination is inapposite. The record demonstrates that claimant had surgery on January 5, 2010, nearly three weeks before he submitted his workers’ compensation claim and, therefore, an authorization for surgery was never requested of
the carrier. The parties’ remaining arguments have been examined and found to be without merit or rendered academic in light of our decision. The decision was reversed and remanded.

In Matter of Williams,the employer appealed from a decision of the Workers’ Compensation Board, filed October 5, 2011, which ruled that the employer’s workers’ compensation carrier
may not begin taking a credit against claimant’s net recovery from a third-party action until the date on which claimant received the recovery. Claimant established a compensable claim for workers’ compensation benefits in 2003. Claimant also initiated a personal injury action related to his injuries against a third party. On September 16, 2010, the employer’s workers’ compensation carrier consented to a settlement of the third-party action for $35,000. On October 5, 2010, claimant received his settlement. Thereafter, the carrier notified the Workers’ Compensation Board that it had suspended making payments to claimant on October 1, 2010 pursuant to the settlement and claimed an overpayment of $6,160. Following a hearing, a Workers’ Compensation Law Judge found, among other things, that the carrier’s credit against claimant’s third-party recovery commenced on October 5, 2010, the date claimant actually received the settlement. The carrier requested full Board review, arguing that the credit commencement date should have been September 16, 2010, the date the carrier consented to the settlement. Upon review, the Board affirmed the determination and the employer and the carrier now appeal, claiming that the Board failed to follow its own precedent.

In situations such as this, where a workers’ compensation carrier consents to a claimant’s recovery in a third-party negligence action, the carrier may be granted a lien on the proceeds of the
recovery equal to the amount of benefits already paid, as well as a credit for any future benefits owed the claimant until the proceeds of the recovery are exhausted (see Workers’ Compensation Law § 29 [1], [4]). Although there is no reference in the statute as to when the credit shall commence(see Workers’ Compensation Law § 29 [4]), the Board generally considers the day that a claimant actually collects the recovery as the date upon which a carrier’s credit commences (see Employer: Woltman Assoc., 2012 WL 1371552, 2012 NY Wrk Comp LEXIS 02876, [WCB No. 2080 1486, Apr. 12, 2012]; Employer: Hempstead Park Nursing Home, 2011 WL 5128656, 2011 NY Wrk Comp LEXIS 06125, [WCB No. 2921 4308, Oct. 20, 2011]; Employer: Microvisions CCC, 2007 WL 1149697, 2007 NY Wrk Comp LEXIS 02621, [WCB No. 4050 1809, Mar. 16, 2007]). The Board has, however, allowed a carrier to begin taking the credit on the date that it consented to the settlement, provided that its consent letter reflected a clear understanding by both parties that no further payments would be made by the carrier unless or until the credit was exhausted (see Employer: Rubbage Constr., 2012 WL 2355731, 2012 NY Wrk Comp LEXIS 05008, [WCB No. 3070 8998, June 14, 2012]; Employer: Poughkeepsie Bus Park LLC, 2007 WL 4953775, , 2007 NY Wrk Comp LEXIS 11272, [WCB No. 5021 0032, Dec. 24, 2007]; Employer: A J M Group, Inc., 2006 WL 1968363,, 2006 NY Wrk Comp LEXIS 05994,
[WCB No. 4040 1115, June 30, 2006]; Employer: Collins Bldg. Servs., 2005 WL 401975, 2005 NY Wrk Comp LEXIS 11514, [WCB No. 0012 7923, Feb. 14, 2005]).

Here, the Board did not base its determination upon an assessment of the terms expressed in the carrier’s consent letter. Rather, the Board found that, since the carrier was not also the carrier that was liable in claimant’s third-party action, the carrier could not begin taking its credit until the date that claimant received his settlement. In support of its determination, the Board cited Employer: Icon Routing (2008 WL 4602817, 2008 NY Wrk Comp LEXIS 09555 [WCB No. 3051 0281, Oct. 1, 2008]). Our review of that decision, however, reveals that the cited precedents do not support the Board’s present holding (id.). Rather, in Icon Routing, the Board determined that the workers’ compensation carrier in all the cited precedents was the same and it was entitled to commence its credit on the date of its consent based upon the terms expressed in the consent letter (id.). Significantly, subsequent Board decisions have also found that carriers were permitted to take credit for the third-party recovery as of the date of consent, based upon the language in the consent letter, with no consideration as to whether the workers’ compensation carrier and the carrier liable in the third-party action were the same (see Employer: Frame Tech, 2012 WL 6561787 [WCB No. 3060 4896, Dec. 5, 2012]; Employer: HDV Concrete, Inc., 2012 WL 2476621; 2012 NY Wrk Comp LEXIS 05350 [WCB No. G007 1515, June 25, 2012]). “While the Board is free to alter a course previously set out in its decisions, it must set forth its reasons for doing so, and the Board’s failure to do so renders its decision arbitrary and capricious” (Matter of Catapano v Jaw, Inc., 73 AD3d 1361, 1362 [2010] [citations omitted]). Inasmuch as the Board has not provided a rational explanation for departing from its prior precedent in determining when a carrier’s credit pursuant to Workers’ Compensation Law § 29 (4) commences, the decision must be reversed and the matter remitted for further proceedings. In light of our holding, the employer and carrier’s remaining contention is academic. ORDERED that the decision is reversed, without costs, and matter remitted to the Workers’ Compensation Board for further proceedings not inconsistent with this Court’s decision.

In the Matter of Ciccione, the carrier appealed among other things, a finding that claimant’s motor neuron disease was consequential to his established claim for Lyme disease and awarded
further workers’ compensation benefits. Claimant, a construction worker, was bitten by a tick while working in the woods and was subsequently diagnosed with Lyme disease in July 2008. When claimant began to experience upper body muscle weakness, he was forced to cease working and the employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) accepted a workers’
compensation claim and began to pay claimant benefits. Despite several courses of antibiotics, claimant’s progressive muscle weakness worsened, ultimately rendering him permanently totally
disabled. However, following the decision of a Workers’ Compensation Law Judge in June 2009 that continued benefits, the carrier appealed, asserting insufficient medical evidence that claimant’s disability continued to be related to his diagnosis of Lyme disease. The Workers’ Compensation Board thereafter held further awards in abeyance pending the production of medical evidence to establish that claimant’s continuing disability was causally related. Following the submission of voluminous medical testimony, the Workers’ Compensation Law Judge amended the claim to include consequential motor neuron disease, as well as consequential anxiety and stress disorder. Upon review, the Board affirmed and the carrier now appeals. The Court affirmed. A claimant bears the burden of presenting competent medical evidence to establish a causal relationship between his or her employment and a disability (see Matter of Bland v Gelman, Brydges & Schroff, 100 AD3d 1289, 1291 [2012], lv dismissed ___ NY3d ___ [Feb. 19, 2013]; Matter of Maye v Alton Mfg., Inc., 90 AD3d 1177, 1177 [2011]). Whether a subsequent disability arose consequentially from an existing compensable A claimant bears the burden of presenting competent medical evidence to establish a causal relationship between his or her employment and a disability (see Matter of Bland v Gelman, Brydges & Schroff, 100 AD3d 1289, 1291 [2012], lv dismissed ___ NY3d ___ [Feb. 19, 2013]; Matter of Maye v Alton Mfg., Inc., 90 AD3d 1177, 1177 [2011]). 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 (see Matter of Spinnato v GE Advanced Materials, 95 AD3d 1466, 1467 [2012]; Matter of Bradley v US Airways, Inc., 58 AD3d 1043, 1044 [2009]). The resolution of conflicting medical opinions, particularly with regard to the issue of causation, is within the exclusive province of the Board (see Matter of
Connolly v Hubert’s Serv., Inc., 96 AD3d 1115, 1116 [2012]; Matter of Searchfield v Lowe’s Home Ctrs., Inc., 92 AD3d 1038, 1039-1040 [2012]).

Here, claimant presented claimant presented the testimony of his treating physician, Lee Isabell, who stated that by March 2009, claimant suffered from significant muscle atrophy that rendered him
totally disabled, which he attributed to claimant’s Lyme disease. Claimant also presented the testimony of board-certified neurologist Samuel Koszer, who also opined that claimant’s progressive muscle weakness and consequent total disability was causally related to his Lyme disease. Finally, claimant introduced the testimony of his treating psychiatrist, Patricia Gerbarg, who indicated that claimant suffered from Lyme disease, which had prompted an autoimmune reaction that produced symptoms in claimant that resembled amyotrophic lateral sclerosis. However, Gerbarg further explained that claimant’s creatine phosphokinase levels had improved when treated with antibiotics, which established a connection between the infection and his muscle deterioration. Finally, Gerbarg opined that claimant was suffering from anxiety and stress related to his diagnosis, as well as the interruption of his treatment for Lyme disease and other neuromuscular symptoms. Thus, while the carrier presented the opinions of several neurologists who could not state with certainty that claimant’s Lyme disease was the cause of his motor neuron disease, the Court found the Board’s determination to be supported by substantial evidence (see Matter of Bland v Gelman, Brydges & Schroff, 100 AD3d at 1291; Matter of Searchfield v Lowe’s Home Ctrs., Inc., 92 AD3d at 1040).

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