NY Board Errs in Setting Disablement Date for Repetitive Stress Injury

A decision by the New York Workers’ Compensation Board that a claimant should have been aware of the work-related nature of his back pain and injury in June 2017, at the time he first sought medical treatment for his pain, and that his claim filed more than two years later was untimely under N.Y. Workers’ Comp. Law § 28, was not supported by substantial evidence, where the medical personnel’s 2017 treatment notes did not draw any causal connection between the claimant’s work and his condition and where the claimant did not miss any time from work due to pain until well into 2019 [Matter of Kretunski v. Citywide Envtl. Servs., 2022 N.Y. App. Div. LEXIS 1203 (3d Dept., Feb. 24, 2022)].

Background

Claimant, who had worked as an asbestos handler for some 20 years, filed a claim workers’ compensation benefits on July 18, 2019, claiming various repetitive stress injuries. Prima facie medical evidence was found for injuries to claimant’s back, right knee and both shoulders and wrists. Following a hearing, a WCLJ set the date of disablement as June 27, 2017 and, finding that claimant knew or should have known on that date—which was when he first sought medical treatment—that his condition was causally related to his employment, disallowed the claim. The Board affirmed in relevant part and Claimant appealed.

Two-Year Statute of Limitations

The appellate court acknowledged that a claim for injuries caused by an occupational disease must be filed within two years after disablement and after the claimant knew or should have known that the disease is or was due to the nature of the employment [see N.Y. Workers’ Comp. Law § 28]. The court further acknowledged that the Board ordinarily had great latitude in setting a date of disablement, that such disablement date might acceptably reflect any of the following:

• the first date of causally related treatment,
• the date on which the claimant first received a diagnosis indicating that the condition was work related,
• the date on which the claimant began to lose time from work due to the work-related disability,
• the date on which the claimant was advised by a physician to stop working due to the work-related disability, and
• the date on which the claimant actually stopped working because of that disability.

Board Erred in Setting Disablement Date

Reviewing the record, however, the court found that substantial evidence did not support the Boards’s determination setting the date of disablement as June 27, 2017. The court noted that Claimant had first sought medical treatment for his physical difficulties in June 2017 when he consulted a pain specialist, but testified that he had been aware of his condition five or six years before stopping work in June 2019.

The court added that the medical records from that initial medical treatment reflect ed that an MRI was ordered and the resulting MRI report dated June 29, 2018 disclosed disc herniation, radiculopathy, and bulging in claimant’s lower back. Claimant’s testimony about the repetitive and strenuous nature of his job was countered by contradictory testimony offered by the employer. The court said nevertheless, the pain specialist testified that in 2017, he did not make any determination with regard to the cause of the back pain. The court noted that there was no reference or notation in the medical records regarding Claimant’s job duties or cause of claimant’s back injury.

No Lost Time Until 2019

The court also pointed to the fact that Claimant did not lose time from work due to any pain prior to June 2019. The court concluded, therefore, that the testimony and initial medical treatment records relied on by the Board did not reflect information as to all sites of injury and did not draw any causal link between claimant’s injuries and his employment. Accordingly, the Board’s conclusion that claimant knew or should have known at the time of the initial medical treatment (June 27, 2017) that his injuries were causally related to his employment was not supported by substantial evidence. The Board’s decision was reversed and the matter remanded for further proceedings.