NY Worker Fails to Establish Claim for Lyme Disease
A New York appellate court affirmed a decision by the state’s Workers’ Compensation Board that denied a claim for consequential Lyme disease in spite of an opinion offered by an IME physician, hired by the employer’s workers’ compensation carrier, that the claimant suffered from chronic post-Lyme disease and that there was a likely causal relationship between claimant’s condition and his employment [Matter of Decandia v. Pilgrim Psychiatric Ctr., 2021 N.Y. App. Div. LEXIS 4516 (July 15, 2021)]. The court stressed that the claimant had been tested for Lyme disease on at least three occasions, and each time the tests were either negative or inconclusive. Moreover, claimant had been asymptomatic for five years after the filing of his accident report. Claimant’s physician had acknowledged that it was unlikely that someone with Lyme disease would be asymptomatic for more than five years after exposure.
Background
Claimant, a safety and security officer for the employer, filed an accident report alleging that, while on patrol in June 2013, he was bitten by two ticks. Almost six years later, claimant filed a claim for workers’ compensation benefits seeking to recover for injuries allegedly sustained as the result of unknown tick bacteria entering his bloodstream. The employer and its workers’ compensation carrier controverted the claim, asserting, among other things, that the claim was untimely under N.Y. Workers’ Comp. Law § 28. Following a hearing and the depositions of certain medical providers, a WCLJ awarded benefits for claimant’s tick bites and consequential Lyme disease, concluding that the claim was timely as it was filed within two years of such diagnosis. Upon administrative review, the Board reversed, finding that the underlying claim was untimely and, in any event, that there was insufficient medical evidence to establish that claimant suffered from Lyme disease in the first instance or that such disease was causally related to his employment. Claimant appealed.
Here, claimant indicated that the injury-producing tick bites occurred on June 9, 2013. It was undisputed that claimant did not file his claim for workers’ compensation benefits until April 29, 2019. The appellate court said that even if it put the timeliness issue aside, substantial evidence supported the Board’s further findings that there was insufficient medical evidence to establish that claimant actually suffered from Lyme disease or that there was a causal connection between any such disease and claimant’s employment.
Three Tests Fail to Show Presence of Lyme Disease
The court noted that the record reflected that claimant, who incurred the work-related tick bites in June 2013, first sought medical treatment for flu-like symptoms in December 2018. The court added that medical records associated with that treatment indicated that claimant reported incurring “three tick bites last year,” i.e., in 2017, and that he was seeking testing for Lyme disease at that time. Although claimant was diagnosed with “a tickborne disease syndrome” in April 2019 by a nurse practitioner and was treated with a course of antibiotics, claimant was tested for Lyme disease on at least three occasions, and each time the tests were either negative or inconclusive.
Lyme Disease Unlikely After Asymptomatic Five Years
The court continued by noting that the physician to whom claimant subsequently was referred for an infectious disease evaluation accepted the nurse practitioner’s diagnosis, notwithstanding the fact that claimant’s test results did not meet the criteria adopted by the Centers for Disease Control and Prevention for diagnosing Lyme disease. Claimant’s physician acknowledged, however, that it was unlikely that someone with Lyme disease would be asymptomatic for more than five years after exposure, and neither she nor the nurse practitioner who initially diagnosed claimant could say that any such diagnosis was causally related to the tick bites that claimant suffered in June 2013.
The appellate court stressed that although a physician who performed an IME of claimant on behalf of the carrier in July 2019 diagnosed claimant with chronic post-Lyme disease and opined that there “appear[ed] to be a cause and effect relationship” between claimant’s injuries and the June 2013 tick bites, the Board was vested with the authority to resolve conflicting medical opinions. It had done so.
The Board’s ultimate conclusion—that claimant failed to establish, by competent medical evidence, that a causal relationship existed between his injury and his employment was supported by substantial evidence in the record as a whole. Accordingly, it would not be disturbed.