Barden v. Gen. Physicians PC

198 A.D.3d 1060

155 N.Y.S.3d 228

In the Matter of the Claim of Cindy L. BARDEN, Appellant,

v.GENERAL PHYSICIANS PC et al., Respondents.

Workers’ Compensation Board, Respondent.

533089

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 8, 2021

Decided and Entered: October 7, 2021

Dolce Firm, Buffalo (Holly L. Schoenborn of counsel), for appellant.

Williams & Williams, Buffalo (Jared L. Garlipp of counsel), for General Physicians PC and another, respondents.

Before: Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeal from a decision of the Workers’ Compensation Board, filed September 29, 2020, which disallowed claimant's request to amend her workers’ compensation claim to include left shoulder aggravation.

On February 25, 2019, claimant, a patient services representative, was injured when she attempted to catch a patient who had fainted and was falling to the ground. The employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) notified the Workers’ Compensation Board of claimant's injury and accepted liability for the claim of a work-related injury to claimant's right shoulder.¹ Based upon an October 25, 2019 medical narrative from claimant's treating physician diagnosing claimant with left shoulder pain, claimant thereafter sought, among other things, to amend her claim to also include consequential left shoulder aggravation. The carrier objected to the request to amend the claim. Following depositions and ensuing hearings regarding the request, a Workers’ Compensation Law Judge amended the claim to include left shoulder aggravation. Upon administrative review, the Board, among other things, disallowed claimant's request to amend her workers’ compensation claim to include left shoulder aggravation, finding that claimant failed to provide sufficient credible evidence showing that her left shoulder aggravation was causally related. Claimant appeals.

"A claimant bears the burden of establishing, by competent medical evidence, a causal relationship between an [alleged] injury and his or her employment" ( Matter of Maldonado v. Doria, Inc., 192 A.D.3d 1247, 1248, 143 N.Y.S.3d 439 [2021] [internal quotation marks and citations omitted]; see Matter of Bland v. Gellman, Brydges & Schroff, 151 A.D.3d 1484, 1487, 58 N.Y.S.3d 225 [2017], lv dismissed and denied 30 N.Y.3d 1035, 69 N.Y.S.3d 233, 91 N.E.3d 1212 [2017], cert denied ––– U.S. ––––, 139 S. Ct. 240, 202 L.Ed.2d 161 [2018] ). "In reviewing a Board decision concerning the medical question of causality, we will look to the record to determine whether, read as a totality, it contains substantial and adequate opinion evidence to support the Board's finding" ( Matter of Rossi v. Albert Pearlman Inc., 188 A.D.3d 1362, 1363, 134 N.Y.S.3d 579 [2020] [internal quotation marks and citations omitted]; see Matter of Gallo v. Village of Bronxville Police Dept., 120 A.D.3d 849, 850, 991 N.Y.S.2d 174 [2014] ).

At the hearing, claimant testified that, prior to the February 2019 accident at work, she had not injured her left shoulder and did not receive treatment for any problems with that shoulder. She explained that, at the time of the accident, she "felt pain in both shoulders, but [her] right shoulder hurt more." Claimant testified that, due to the work-related injury to her right shoulder and the December 2019 surgery on that shoulder, she used her left arm more often, which produced more pain in her left shoulder. Consistent with claimant's narrative about the onset of pain in her left shoulder, Peter Shields, claimant's treating physician, testified that claimant first reported her left shoulder pain at an October 25, 2019 examination and that a subsequent MRI revealed that claimant sustained in her left shoulder, among other conditions, a cuff tear arthropathy and advanced degenerative arthritis. Shields further explained that, although claimant's left shoulder might have been aggravated by the strain that she put on it at the time of the accident, the pathology in claimant's left shoulder was preexisting, largely unrelated and not necessarily consequential to the injury of February 2019. Shields opined that the condition of claimant's left shoulder was independent of her work-related injury and...